^Ua--^-^^ 


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,..-it:i-A_.^-A_<-v        ''  - 


COTTE,T    OIF    CL_A.IDVi:S 

(Decided  March  20,  1905.) 


^-^...^    li^^-^  Xr 


No.  23199. 

THE  CHEROKEE  NATION  v.  THE  UNITED  STATES. 

No.  23211.  C  ' ' 

THE  EASTERN  CHEROKEES  v.  THE  UNITED  STATES. 

No.  23212. 

THE   EASTERN  AND   EMKtRANT  CHEROKEES  v.  THE 
UNITED  STATES. 


OPINION. 


NoTT,  Ch.  J.,  delivered  the  opinion  of  the  court: 

In  December,  1891,  the  United  States  and  the  Cherol-cee  Nation 
entered  into  an  agreement  for  the  purchase  and  sale  of  a  great  tract 
in  the  Indian  Territory  known  as  the  Cherokee  Outlet.  At  the  time 
of  this  negotiation  the  C'herokees  had  a  grievance  against  the  United 
States — a  grievance  which  had  ) turned  in  the  breasts  of  two  genera- 
tions, and  had  never  been  forgiven  or  forgotten.  That  grievance  was 
the  treaty  of  1S3.5,  conunonly  known  as  the  Treaty  of  New  Echota — 
the  corrupt  method  by  which  it  had  Iteen  procured,  the  ruthless  means 
V)y  which  it  had  been  executed,  and  the  evasive  way  in  whicli  its  obli- 
gations had  been  left  unfulfilled.  The  history-  of  this  treaty  and  its 
consequences  have  been  examined  and  set  forth  by  this  court,  and  need 
not  be  repeatrj  here.  (  Wrster/i  CJu^rol'cesx.  United  States.  27  C.  Cls. 
R.,  1.)  It  is  enough  to  say  that  "the  treaty  of  New  Echota  was  the  act 
and  deed  of  neither  the  Eastern  nor  Western  Cherokees,"  and  that 
neitlier  the  Chcu-okee  people  nor  the  Cherokee  government  ever 
acknowledged  it.  In  the  words  of  Ross,  they  said  in  a  memorial  to 
Congress  I)ecember  15.  1S3T:  "  We  complain  of  sending  among  us  a 
large  arnu^d  force,  of  tlie  attempts  made  to  prevent  the  expression  of 
opinion  among  us,  of  the  arrest  and  imprisonment  of  our  persons, 
of  the  expulsion  of  our  people  from  their  homes:  for  which  even  the 
document  in  (juestion  furnishes  no  ground  or  cause.  All  these,  how- 
ever, sink  into  insignificance  when  compared  with  the  one  overwhelm- 
ing calamity,  present  and  prospective,  of  having  the  instrument  of 
December,  1S35,  enforced  upon  us  and  our  people." 

22481—05 1 


O  ">  -2.  I  I  vL 


And  in  that  remarkable  petition  submitted  to  Congress,  bearing 
date  February  22,  ls3S,  sig-ned  by  15,665  of  the  Cherokee  people,  the 
whole  nation  reiterated.  "'  We  do  solemnly  and  earnestly  protest  against 
that  spui'ious  instrument." 

Hut  while  the  Cherokee  people  always  maintained  that  the  treat^-of 
New  Echota  was  falsely  executed  in  their  name  1>3'  a  few  unauthorized, 
unofticial  persons,  corrupth'  suborned  by  an  agent  of  the  Ignited  States, 
they  nevertheless  were  compelled  by  the  condition  of  affairs  in  the 
Cherokee  country  and  l)y  the  overwhelming  power  of  the  United 
States  to,  in  a  measure,  adopt  it  through  the  instrvmientalitv  of  the 
Cherokee  treaty  of  1846  (y  8tat.  L..  p.  871).     Of  it  this  court  has  said: 

""That  treaty  was  a  compact  between  three  parties — the  United 
States,  the  Eastern  and  the  Western  Cherokees.  Its  purpose  was  to 
make  the  Eastern  and  Western  Cherokees  parties  to  the  treaty  of  New 
Echota.  which  they  had  never  conceded  themselves  to  be.  and  to  secure 
peace  in  the  Cherokee  country.  The  principle  upon  which  it  sought 
to  accomplish  this  purpose  was.  that,  on  the  one  hand,  the  Western 
Cherokees  should  participate  in  the  purchase  money  which  had  been 
paid  for  the  lands  east  of  the  Mississippi;  and  on  the  other,  that  they 
should  abandon  their  autonomy  and  become  subject  to  the  government 
which  had  been  established  by  the  Eastern  Cherokees. 

"The  reason  behind  the  principle  was  that  in  1835  the  Western 
Cherokees  owned  the  Cherokee  country  West,  and  had  paid  for  it.  and 
that  the  Eastern  Cherokees  acquired  by  the  terms  of  the  treaty  of 
New  Echota  two-thirds  of  this  without  paying  for  it.  and  at  the  same 
time  retained  all  of  the  purchase  money  which  had  been  given  for  their 
possessions  east  of  the  Mississippi.  A  portion  of  this  purchase  money 
had  been  expended  for  the  use  of  the  Eastern  Cherokees  and  a  poition 
continued  to  be  held  as  a  trust  for  their  benetit:  the  remainder  had 
been  paid  to  them  per  capifo. 

"'If  their  removal  had  been  eli'ected  on  the  same  terms  as  that  of  the 
Western  Cherokees.  under  the  treaty  of  1828  they  would  have  received 
land  in  the  Indian  Territorv  in  exchange  for  land  east  of  the  ^Mississippi. 

•'As.  it  was,  they  had  received  both  land  and  money:  but  the  land 
was  the  land  of  the  Western  Cherokees.  Strictly,  the  Government 
should  have  paid  the  Western  Cherokees  for  the  lands  thus  appro- 
priated, and  should  have  deducted  the  price  from  the  money  paid  to 
the  Eastern  Cherokees.  It  was  now  sought  by  the  treaty  of  1846  to 
accomplish  this  in  an  indirect  way:  the  Western  Cherokees  were  to  be 
admitted  ah  Initio  to  a  quasi  partnership  or  joint  ownership,  by  the 
terms  of  which  they  were  to  contribute  the  land  in  the  Indian  Terri- 
tory and  share  in  the  proceeds  of  the  land  east  of  the  ^lississippi. 

'•  By  the  terms  of  this  arrangement  the  Eastern  Cherokees  consented 
to  their  sharing  in  the  purchase  money  so  far  as  it  was  still  held  by 
the  United  States  in  the  form  of  trusts  and  annuities:  and  the  United 
States  agreed  that  so  far  as  it  had  been  paid  away  to  individual 
Indians  and  could  not  be  restored  they  should  pay  it  over  again,  and 
thus  make  good  to  the  Western  Cherokees  their  riohtful  proportion 
in  the  fund^"     (  Wt^'tcrn  Chf^roktex  v.  United  St<itrs.  27  C.  Cls.  R..  1.  36.) 

Having  thus  become  indirectly  and  unwillingly  parties  to  the  treaty 
of  New  Echota  the  Eastern  Cherokees,  nevertheless — that  is  to  say, 
all  of  those  Cherokees  who  were  divested  of  their  lands  east  of  the 
Mississippi  by  the  treaty  of  New  Echota  in  1835 — have  steadfastly  and 


persistently  nmiiitainod  that  that  treaty,  harsli  and  inexorable  as  it 
was,  has  never  been  carried  into  etiect  according-  to  the  true  import 
and  ostensible  intent  of  its  pro\'isions. 

Li  18!>1  the  Cherokee  people  and  the  United  States  were  confronting 
each  other  for  the  last  time  as  vendors  and  purchasers  of  land.  The 
Cherokee  <^)utlet  was  then  the  last  remnant  of  territory  to  be  ceded, 
and  in  a  few  years  the  autonomic  government  of  the  nation  was  fore- 
ordained to  cease.  The  Cherokee  commissioners  were  true  to  their 
people  and  their  fathers  in  demanding  as  a  condition  to  the  cession  and 
as  an  addition  to  the  specitied  consideration  for  the  grant  (S8.3u0,000) 
that  aU  of  the  past  treaty  transactions  between  the  United  States  and 
the  Cherokee  Nation  should  l)e  reo]X'ned;  that  theii*  demands  should  be 
reconsidered;  that  the  moneys  which  might  be  equitably  and  justly 
due  to  them  should  be  paid,  and  that  in  the  final  detcrniination  of 
these  matters  they  should  have,  if  they  desired  it,  access  to  the  judicial 
tribunals  of  the  L'nited  States.  These  demands  were  acceded  to  by  the 
Government  of  the  United  States,  and  were  ratitied  and  approved  b}" 
Congress  (27  Stat.  L.,  p.  64o,  sjlo).  The}'  found  expression  in  the 
following-  formal  agreement: 

"The  United  States  shall,  without  delav,  render  to  the  Cherokee 
Nation,  through  any  agent  appointed  by  authority  of  the  national 
council,  a  complete  account  of  moneys  due  the  Cherokee  Nation  under 
any  of  the  treaties  ratitied  in  the  years  1817,  181i»,  18"25, 1828,  1885-36, 
1846,  1866,  and  1868,  and  any  laws  passed  by  the  Congress  of  the 
United  States  for  the  purpose  of  carrying  said  treaties,  or  any  of  them, 
into  effect;  and  upon  such  accounting,  should  the  Cherokee  Nation, 
by  its  national  council,  conclude  and  determine  that  such  accounting- 
is  incorrect  or  unjust,  then  the  Cherokee  Nation  shall  have  the  right 
within  twelve  months  to  enter  suit  against  the  United  States  in  the 
Court  of  Claims,  with  the  right  of  appeal  to  the  Supreme  Court  of 
the  United  States  l)y  either  party,  for  any  alleged  or  declared  amount 
of  money  promised  Init  withheld  by  the  United  States  from  the  Cher- 
okee Nation,  under  any  of  said  treaties  or  laws,  which  may  be  claimed 
to  be  omitted  from,  or  improperly  or  unjustly  or  illegally  adjusted  in 
said  accounting;  and  the  Congress  of  the  United  States  shall,  at  its 
next  session,  after  such  case  shall  be  tinally  decided  and  certitied  to 
Congress  according  to  law,  appropriate  a  sufhcient  sum  of  money  to 
pay  such  judgment  to  the  Cherokee  Nation,  should  judgment  be  ren- 
dered in  her  favor;  or,  if  it  shall  be  found  upon  such  accounting  that 
any  sum  of  money  has  been  so  withheld,  the  amount  shall  l)e  duly 
appropriated  by  Congress,  payal)le  to  the  Cherokee  Nation,  upon  the 
order  of  its  national  council,  such  appropriation  to  be  made  bv  Con- 
gress, if  then  in  session,  and  if  not,  then  at  the  session  immediately 
following  such  accounting." 

There  was  at  the  time  when  this  agreement  was  entered  into  no 
undcn-standing  or  supposition  as  to  how  the  United  States  should  render 
the  account  caHed  for.  The  ri^presentatives  of  the  United  States  did 
not  themselves  know.  This  is  shown  incontestat)ly  by  the  fact  that 
soon  afterwards  the  Commissioner  of  Indian  Affairs,  in  response  to 
some  inquiry,  reported  to  the  Senate: 

"  I  hav(^  the  honor  to  say  that  if  this  section  is  construed  to  require 
the  United  States  to  state  an  account  of  moneys  stipulated  to  be  pu^ 
to  the  Cherokee  Nation,  under  the  treaties  therein  specitied,  and  n 


the  A^arious  appropriation  acts  passed  to  carry  the  same  into  effect,  this 
account  could  l)e  prepared  by  this  oiBce  within  a  reasonable  time — sa}', 
about  two  months.  If,  on  the  other  hand,  it  be  construed  to  require  a 
detailed  statement  of  all  the  moneys  received  and  disbursements  made 
by  the  United  States  of  the  Cherokee  funds  under  said  treaties  and 
acts  of  Conoress.  which  seems  to  me  to  be  the  intention  of  the  parties 
negotiating-  the  agreement,  it  would  require  the  services  of  an  expert 
accountant,  with  assistants,  probabh"  twelve  months  or  more  to  review 
and  copy  the  Cherokee  accounts  and  records  running  back  nearlv  a 
century.  In  order  to  prepare  a  statement  of  this  kind  it  would  require 
an  appropriation  by  Congress  of  the  sura  of  at  least  $5,0(t()  to  pay  for 
the  services  of  an  expert  accountant." 

Congress  adopted  the  latter  alternative,  and,  by  the  act  3d  March, 
1893  (21  Stat.  L.,  pp.  612,  643,  SilO),  appropriated'^$5,000  to  enable  the 
Commissioner  "to  employ  such  expert  person  or  persons  to  properly 
render  a  complete  account  to  the  Cherokee  Nation  of  moneys  clue,"  etc. 
Two  accountants  were  selected  by  the  Commissioner  of  Indian  Affairs 
(Messrs.  James  A.  Slade  and  Joseph  T.  Bender),  who,  after  a  pro- 
longed examination,  in  ISO-l  handed  in  their  account.  It  resulted  in 
allowing  three  items  of  trifling  amount,  which  the  United  States  con- 
ceded, and  in  disallowing  items  which  the  Cherokee  Nation  claimed; 
and  on  the  great  and  important  subject  in  dispute — the  treaty  of  New 
Echota — it  found  a  balance  of  ^1,111,284.70,  and  it  allowed  interest 
upon  this  balance  from  fJune  12,  1838.  The  account  sets  forth  items 
and  amounts  and  facts  and  reasons  and  conclusions,  much  in  the 
form  of  an  award;  and  it  is  not  surprising  that  it  was  regarded  by 
some  persons  as  such  and  by  other  persons  as  having  been  intended  to 
be  such  by  the  accountants.  But  the  agreement  did  not  provide  that 
the  account  should  be  made  by  an}"  specific  [)erson  mutualh'  agreed 
upon  as  umpire,  or  by  clerks  or  accountants  or  auditors  or  arbitra- 
tors. All  that  it  says  is  that  '"the  United  States  shall,  without  delay, 
render  to  the  Cherol-et  JVatton  a  complete  account.''''  It  is  the  United 
States\  one  of  the  parties,  which  is  to  do  this,  and  not  an  intermediary 
agreeable  to  both  parties.  The  United  States  are  left  free  to  make  up 
the  account  in  any  manner  they  please;  and  the  account,  when  ren- 
dered, will  not  be  conclusive  or  prima  facie  for  or  against  the  Chero- 
ivce  Nation.  The  one  thing  that  is  certainly  assured  to  the  nation,  and 
the  only  thing,  is  that  the  account  will  be  the  portal  through  which 
the  Cherokee  Nation  can  carry  the  rights  and  the  wrongs  of  its  people 
into  a  judicial  forum. 

At  this  point  the  uncertainties  and  the  controversies  of  the  case 
begin.  When  the  account  came  in  (April  28,  1894)  the  Secretary  of 
the  Interior  (who  occupies  the  same  position  with  regard  to  Indian 
nations  and  tribes  that  the  Secretary  of  State  does  with  regard  to  for- 
eign nations)  transmitted  it  (May  21,  1894)  to  the  Cherokee  Nation. 
The  nation  accepted  it  (December  1,  1894)  and  signiffed  their  accept- 
ance. there])y  waiving  the  items  which  the  accountants  had  disallowed 
and  its  right  to  carry  those  rejected  items  into  the  courts  of  the  United 
States.  On  January  7.  lsi>,5.  the  Secretary  of  the  Interior  transmitted 
the  account,  together  with  the  acceptance  of  the  Cherokee  Nation,  to 
the  House  of  Representatives. 

Congress  did  not  make  the  appropriation  in  the  manner  prescribed 
in  the  agreement — ""si/ch  apjn'oprlatlon  to  he  made  hj  Congress  If  then 
in  session,  and  if  not,  tlirn  at  the  session   im m ediately  fotloicing  such 


acconnting'^ — but,  on  the  contrurv,  did  nothing  At  the  end  of  the 
session,  the  House  of  Representatives,  on  tiie  '2d  of  March,  ISl'o, 
called  on  the  Attorney-General  for  an  opinion  concerning  the  con- 
clusions reached  by  the  accountants.  The  Att(n'ney-(Teneral  made 
his  reply  at  the  ])eginning  of  the  next  session  in  December  following. 
The  second  session,  "the  session  immediately  foHowing  such  account- 
ing," passed  without  Congressional  action  of  any  kind.  On  the  2<)th 
of  February,  1901,  the  Senate  transmitted  to  the  Court  of  Claims  a 
bill  calling  for  a  report  of  the  facts.  On  April  28,  1902,  the  court 
transmitted  to  the  Senate  its  findings  of  fact  under  such  reference,  but 
expressed  no  opinion  upon  any  question  of  laAV.  Not  until  the  1st  of 
July.  1902,  did  Congress  act,  and  their  action  was  merely  passing  the 
jurisdictional  statute  under  which  the  court  is  now  acting.     (32  Stat.  L. , 

p.  tk;.) 

On  the  trial  of  this  case  the  arguments  extended  over  a  verv  wide 
range  of  fact  and  law,  going  ]>ack  to  the  treaty  of  Ne\\'  Echota  and 
coming  down  to  the  questions  whether  the  account  of  Messrs.  Slade 
and  Bender  could  be  considered  as  an  award  or  as  an  account  stated. 

In  the  opinion  of  the  court  the  account  can  not  be  regarded  as  an 
award:  in  the  opinion  of  the  court  it  does  not  have  one  element  of  an 
award.  An  award  is  the  result  of  an  examination  in  some  form  or 
other  by  a  person  mutually  agreed  upon.  In  building  contnicts  courts 
have  constantly  l)efore  them  stipulations  that  certain  things  shall  l>e 
decided  l)y  the  architect,  or  by  the  engineer  in  charge,  whose  decision 
shall  be  final.  Such  awards,  within  proper  limitations,  are  to  ))e 
upheld.  But  in  the  agreement  now  t)efore  us  there  is  not  so  much  as 
the  suggestion  of  a  person  who  shall  act  as  umpire  or  of  a  matter  to 
be  submitted  to  him.  All  that  the  agreement  requires,  as  before  has 
been  said,  is  that  one  of  the  parties,  the  United  States,  shall  render  to 
the  other  their  account.  How  they  shall  render  it,  in  what  form  they 
shall  render  it,  to  what  extent  they  shall  render  it,  is  left  entirely  to 
themselves.  It  is  to  be  the  account  of  the  United  States  and  not  the 
account  of  some  person  acting  for  l)oth  parties.  Before  there  can  Ije 
an  award,  having  the  element  of  finality,  there  nmst  be  something 
mutually  submitted  to  somebody.     Such  was  not  the  case  here- 

Neither  can  the  court  I'egard  it  as  an  account  stated.  An  account 
stated  is  something  arising  in  the  ordinary  course  of  business  between 
men  having  continuous  business  transactions.  When  one  of  them, 
the  creditor,  makes  out  an  account  and  the  other,  the  debtor,  accepts 
it,  an  action  will  lie  upon  it.  The  acceptance  may  be  express  or 
implied.  If  the  one  sends  it  and  the  other  raises  no  objection  to  it 
within  a  reasonal)le  time,  the  law  merchant  holds  that  he  assents  to  it; 
and  then,  if  he  did  not  oltject  when  he  should  have  objected,  that  he 
will  be  estopped  from  ol)jecting.  The  account  rendered  then  becomes 
an  account  stattnl,  from  which  the  law  will  im])ly  a  ])romis(»  to  pay  the 
balance  appearing  to  be  due,  and  upon  which  an  action  may  be  brought. 
The  Slade  and  Bender  account  does  not  contain  these  elements.  It  is 
the  creditor  and  not  the  de)>tor  who  furnishes  an  account  stated;  it  is 
the  debtor  and  not  the  creditor  who  must  assent  to  it.  This  account 
was  merely  "'rendered''  and  by  the  delator,  and  undtM-  a  specific 
agreement  which  provides  what  shall  be  done  with  it.  The  (piestion 
is  not  whether  it  was  or  was  not  an  account  stated,  but  what  may  be 
the  liabilities  of  the  parties  under  the  specitic  agreement. 


6 

But  while  the  account  was  neither  an  award  nor  an  account  stated, 
it  must  be  conceded  tliat  the  scope  of  the  accounting-  was  intended  to 
be  as  broad  as  the  causes  of  action  secured  by  the  agreement  to  the 
Cherokee  Nation  "fJi<-  riijht  irifh/n  tn'tJce  montJiK  to  tnter  suit  against 
the  Unittd  Statt'.<  ill  ill'  Court  of  Claims  for  any  aUtged  &r  declared 
amount  of  nwnty  promisi^d  hut  icdhfield  hy  the  United  States  from  the 
Cherol'er  ynti'iiK  iiiidr-r  any  of  soAd  treaties  or  laivs.  which  may  he 
claimed  to  hi^  nniitt'-d  from  or  improperly  or  unjustly  or  illegally 
adjusttd  in  said  accounting.'-  That  is  to  say.  the  court,  or  the  account- 
ants, were  to  go  behind  statutory  and  treaty  bars  and  receipts  in  full 
and  were  to  consider  '"any  alleged  or  declared  amount  of  mone}' 
promised  but  withheld"  "under  any  of  said  treaties  or  laws."  This 
meant  that  there  were  to  be  no  technical  defenses  set  up.  no  pleas  of 
res  Judicata,  no  releases  or  relinquishments,  compromises  or  settle- 
ments: or  it  meant  nothing.  For  if  the  proposed  suit  of  the  Chero- 
kees  was  to  be  decided  strictissiini  juris,  i.  e..  upon  technical  defenses, 
it  had  already  been  decided  against  them. 

That  decision  was  not  against   the  Cherokee  Nation,  but  it  was 
against  Cherokee  citizens.     The  Cherokees  have  maintained  from  the 
,  tirst  and  always  that  to  make  them  pay  for  their  removal  from  homes 
I'j  which  they  did  not  wish  to  leave  to  a  country  to  which  they  did  not 
'i  wish  to  go  was  a  monstrous  abuse  of  the  obscure  provisions  of  a  treaty 
ji;  which  they  had  not  read,  which  they  had  not  signed,  and  to  which 
/   thev  had  not  in  fact  been  parties.     "•  Immediateh'  before,  and  up  to 
,    the  time  of  the  eviction  of  the  Cherokees.  the  Government  had  been 
carrving  on  a  negotiation  Avith  their  delegates  who  had  submitted  cer- 
tain  propositions  looking  toward  a  new  treaty.     On  the  18th  of  May. 
1S3S,  Mr.  Poinsett.  Secretary  of  War.  communicated  his  objections  of 
them  to  the  delegates,  but  at  the  same  time  made  to  them  an  offer, 
the  substance  of  which   was  that  if  the   Cherokees  would  '  remove 
peaceably    and    contentedly    to    their    new    homes    in     the    West' 
the    United    States   would    defray   the   expenses   of    their    removal 
and  sul)sistence.     This  offer  bears  date  only  live  days  before  the  evic- 
tion began.     It  was  not  accepted  by  the  Cherokees.  but  seems  to  have 
been  tacitly  acquiesced  in.  they  removing  peaceably  if  not  content- 
edly, and  su1)sequently  claiming  that  the  cost  of  removal  and  subsist- 
ence   should  not   be  borne    bv   themselves."     (Wcsftrn    Cht-rokees  v. 
Cnit'^d  States.  27  C.  Cls.  R..l."44.)     Yet  the  court  was  obliged  in  that 
case  to  hold,  according  to  the  letter  of  the  law  (the  treaties,  the  stat- 
utes, the  acquitances).  that  the  cost  of  removal  was  to  be  a  charge  upon 
the  S5.(Mi( ».(!(;( I  treaty  fund  and  to  be  borne  by  the  Cherokees.     It  is 
manifest  that  the  agreement,  here,  intended  something  more  than  that 
the  Cherokees   might   come  into  coui't  to  be  immediately  turned  out 
under  previous  decisions.     Interpreted  in  the  light  of  the  long,  sore 
controversy  which  had  existed  Ijetween  the  parties,  it  is  plain  that  the 
Cherokees   believed  the  agreement  to  mean  (and  the  United  States 
allowed  them  so  to  believe)  that  all  of  their  claims  and  rights  and  equi- 
ties were  to  be  reopened  and  reexamined  dt  noro.-  and  that  upon  the 
faith  of  that  beli'^f  they  made  a  cession  of  the  Outlet. 

In  the  opinion  of  the  court  this  case  is  simply  one  to  recover  pur- 
chase money  upon  a  contract  of  sale.  Ordinarily,  in  such  a  case,  the 
cession  would  not  be  made,  the  deed  would  not  he  delivered  until  the 
purchase  money  is  paid  or  secured  or.  at  least,  the  amount  be  ascer- 
tained and  liquidated.  In  this  case  both  parties  wanted  to  expedite 
the  transaction.     It  w;is  important  for  the  United  States  that  the  ces- 


sion  of  the  territory  should  be  made  immediateh';  it  was  desirable  for 
the  Cherokee  Nation  that  the  purchase  money  should  be  ])aid  soon. 
But,  nevertheless,  the  Cherokee  Nation  had  the  right  to  innuediate 
payment,  and  the  agreement  intended  to  secure  to  them  the  next 
thing  to  it — the  right  to  an  early  payment.  The  accounting  was  merely 
a  means  to  an  end.  The  end  was  the  innuediate  payment,  as  near  as 
might  be,  of  the  whole  consideration  to  be  given  for  the  cession  of  the 
Outlet.  When  the  cession  was  m-ade  the  purchase  money  was  due; 
the  only  thing  remaining,  which  was  the  object  of  the  accounting,  was 
to  ascertain  the  exact  amount.  Tliis  is  not  the  case  of  a  part}'  prose- 
cuting an  unliquidated  debt,  l)ut  a  case  of  sale  and  delivery  and  non- 
payment of  the  purchase  money  for  the  thing  sold  and  delivered.  The 
United  States  were  willing  to  pay:  the  Cherokee  Nation  wanted  the 
payment  made  at  the  earliest  possible  day;  both  parties  agreed  upon 
a  method  by  which  it  should  be  paid  as  nearly  innnediately  as  was 
possible.  The  United  States  were  to  render  their  account  ''without 
delav;''  if  the  Cherokee  Nation  ^accepted  it,  the  amount  was  to  be 
appropriated  by  Congress;  such  "  appropriation  was  to  l>e  made  ])y 
Congress,  iftlicn  !n  xe.s.s/c.'//.  and  if  not,  then  at  the  se-'^xion  uinticdlatt'ly 
foUoii'uig  such  account  I  iKj."  If  the  Cherokee  Nation  did  not  accept 
the  accounting,  or  regarded  it  as  incorrect  or  unjust,  and  carried  it 
into  the  courts  and  recovered  a  judgment.  Congress  was  to  appropriate 
''*  at  its  nc'd  session  after  sudi  n/sr  shall  he  paally  decided.'^  Nothing 
was  left  to  the  ordinary  uncertainties  and  procrastinations  of  legis- 
lation, and  no  agreement  could  have  made  the  obligation  to  pav 
promptly  more  imecjuivocal  and  specific.  Time  was  of  the  essence  of 
the  contract,  so  far  as  the  words  of  the  parties  could  make  it. 

The  court  does  not  intend  to  uuply  that  when  the  account  of  Slade 
and  Bender  came  into  the  hands  of  the  Secretary  of  the  Interior  he 
was  bound  to  transmit  it  to  the  Cherokee  Natioir.  On  the  contrary, 
the  Cherokee  Nation  had  not  agreed  to  be  bound  by  the  report  of  the 
accountants  and  could  not  claim  that  the  United  States  should  l)e. 
The  accountants  wei'e  but  the  instrumentality  of  the  United  States  in 
making  out  an  account,  ^^'hen  it  was  placed  in  the  Interior  Depart- 
ment it  was  as  much  within  the  discretion  of  the  Secretary  to  accept 
and  adopt  it  or  to  remand  it  for  alterations  and  corrections  as  a  thing 
could  be.  Pie  was  the  representative  of  the  United  States  under  whom 
the  agreement  had  been  made,  and  he  was  the  authority  under  which 
the  account  had  been  made  out;  and  when  he  transmitted  it  to  the 
Cherokee  Nation,  his  transmission  was  the  transmission  of  the  United 
States.  When  the  account  was  thus  received  by  the  Cherokee  Nation 
(May  21,  18!t-t)  the  "twelve  months"  of  the  agreement,  within  which 
the  nation  uuist  consider  it  and  enter  suit  against  the  othei'  party  in 
the  Court  of  Claims,  began  to  run:  and  with  the  nation's  acceptance 
of  the  account  (December  L.  l'^'.*!),  the  session  of  Congress  at  which 
an  appropriation  should  tte  made  became  fixed  and  certain.  The  Sec- 
retai'y  did  not  recall  the  acconnl::  the  United  States  nt^ver  ivndered 
another;  and  the  utmost  authority  which  Congress  could  have  ex(>r 
cised.  if  any,  was,  at  the  same  session,  or  certainly  w  ithin  the  i)i'e- 
scribed  "twelve  months."  to  ha\(*  directed  the  Secrettirv  to  withdraw 
the  account  and  notify  the  Cherokee  Nation  that  anoth(U'  would  l)e 
rendered.  The  action  of  the  Secretary  of  the  Interior,  combined  with 
the  inaction  of  Congress  to  direct  iuiything  to  the  contrary,  makes  this 
provision  of  the  agreeuKMit  hnal  and  conclusive.  The  Cherokee  Nation 
has  i)arted  with  the  land,  has  lo--t  the  tim(>  within  whit  h  it  might  ha\e 


appealed  to  the  courts,  and  has  lost  the  rig-ht  to  bring-  the  items  which 
it  regards  as  incorrectly  or  unjustly  disallowed  to  judicial  arbitrament; 
and  the  United  States  are  placed  in  the  position  of  having  broken  and 
evaded  the  letter  and  spirit  of  their  agreement. 

When  the  agreement  is  analyzed  it  seems  plain  that  if  the  court 
were  to  uphold  the  course  which  the  United  States  have  pursued  it 
would  have  to  adopt  one  of  two  alternatives:  Either  it  would  have  to 
read  into  the  agreement  provisions  which  are  not  there  and  which  are 
the  converse  of  those  which  are  there  (that  it  was  the  Cherokee  Nation, 
and  not  the  United  States,  which  was  to  render  the  account;  that  it  was 
the  United  States,  and  not  the  Cherokee  Nation,  which  might  ol)iect  to 
the  account;  that  it  was  the  United  States,  and  not  the  Cherokee  Nation, 
to  whom  judicial  redress  was  given),  or  it  would  have  to  hold  that 
the  agreement  promised  nothing,  assured  nothing,  gave  no  judicial 
means  of  redress,  and  left  the  Cherokee  Nation  in  precisely  the  same 
plight  that  it  would  have  been  in  if  no  agreement  had  been  made,  to 
wit,  with  a  controversy  of  nearly  seventy  j^ears  still  unsettled. 

The  question  which  next  arises  relates  to  the  contending  parties 
before  the  court — the  Cherokee  Nation,  being  the  Cherokee  govern- 
ment, the  Eastern  Cherokees,  being  the  communal  owners. 

The  contracting  ])arty  here,  being  also  the  party  who  made  the 
conveyance  of  the  Cherokee  Outlet,  was  the  Cherokee  Nation;  and  if 
the  lands  of  the  Cherokees  were,  like  the  lands  of  the  United  States, 
Government  lands,  or  public  lands  in  which  the  Government  has  the 
sole  proprietary  interest,  and  in  which  no  individual  has  an}'  personal 
interest  whatever,  there  could  not  be  a  doubt  of  the  exclusive  right 
of  the  Cherokee  Nation  to  have  a  judgment  awarded  in  its  name.  But 
in  1835  the  lands  of  the  Cherokees  east  of  the  Mississippi,  and  in  1846 
the  lands  of  the  Cherokees  in  the  Indian  Territory,  were  neither  public 
nor  private  lands  in  the  ordinary  sense  of  those  terms.  The  term 
"comnumal,"  it  is  believed,  is  not  to  be  found  in  treaties  or  statutes 
or  public  documents  relating  to  the  Indians  prior  to  the  date  of  the 
case, of  the  We-'<tef?i  CheroJites  {-21  C  Cls.  R.,  1).  But  the  officers  of 
the  Government,  under  stress  of  circumstances — that  is  to  say,  the 
expectations  of  the  Indians — have  alwaj's  treated  Indian  lands  as  com- 
munal, though  they  did  not  use  the  term  and  had  very  dim  perceptions 
as  to  the  nature  of  the  estate.  Whenever  the  Government  has  paid 
for  a  cession  of  Indian  land  jh^r  cupita  to  everv  member  of  an  Indian 
connnunity,  share  and  share  alike,  it  was  l)ecause  the  Indians  knew 
that  their  lands  were  communal  property  and  that  they,  as  communal 
owners,  were  entitled  to  the  purchase  monev.  The  case  of  the  West- 
ern Cherokees  {xnpra)  is  so  nearly  identical  to  the  present  one  as  regards 
the  parties  claimant  that  the  opinion  in  that  case  correctly  sets  forth 
the  facts  and  the  law  of  the  present  one: 

"The  lands  east  of  the  Mississippi  Avere  not  vested  in  the  Cherokee 
government,  as  distinguished  from  the  Cherokee  people.  Their  chiefs 
in  council,  as  representative  of  the  body  politic,  might,  perhaps,  have 
sold  or  disposed  of  them,  but  under  their  constitution  and  laws  could 
not  have  brought  an  action  of  trespass  or  ejectment  against  one  of 
their  own  citizens  for  dwelling  upon  or  hunting  over  the  lands.  The 
title  was  not  vested  in  the  Cherokees  as  individuals.  They  were 
neither  tenants  in  common  nor  joint  tenants.  The  individual  Chero- 
kee had  no  vested  right  which  he  could  convey  or  devise  or  make  the 
subject  of  a  suit  in  partition.     It  he  withdrew  from  the  community 


9 

he  left  ill!  rights  behind  him.  uiul  if  a  .stranger  was  admitted  he 
acquired  a  right  ))y  virtue  of  his  achnission  alone.  The  property  was 
communal — a  property  wherein  every  person,  not  as  an  individual, 
but  as  a  member  of  the  oonmiunity,  held  an  equal,  indistinguishal)le, 
indivisable  rio-lit  of  user,  and  notliing  more."  iW>.'<t'r//  C7n /-n/.-rrs  y. 
United  State.s^'ll  C.  Cls.  R.,  1.  53.) 

The  present  case  is  also  complicated  by  the  fact  that  a  considerable 
portion  of  these  communal  owners  tire  neither  citizens  of  the  Cherokee 
Nation  nor  suV)ject  to  its  jurisdiction  nor  dwellers  within  its  territory, 
but  are  and  always  have  l)een  residents  of  territory  east  of  the  Missis- 
sippi, owing-  allegiance  now  exclusivel}"  to  the  Unitetl  States.  It  i.s 
also  complicated  by  the  fact  that  the  account  rendered  by  the  I'nited 
States  to  the  Cherokee  Nation  is  made  up  of  four  distinct  and  essen- 
tially ditierent  items:  One.  the  chief  one,  is  for  money  erroneously  „, 
charged  to  the  Cherolvces  instead  of  being  divided ^>r/wv7>/V'/  among-/.'/ 
them;  another  is  for  money  ^\■llicll  should  have  been  atlded  to  they' 
principal  of  the  school  fund,  a  fund  which  is  held  bv  tlie  I'nited  States 
in  trust;  a  third  is  for  money  inq)roperly  charged  to  the  Cherokee 
national  fund,  likewise  held  in  trust  by  the  Cnited  States.  Only  one 
appears  to  be  money  properly  due  to  the  Cherokee  Nation  as  a  gov- 
ernment, and  that  for  the  inconsiderable  amount  of  §432.28.  The 
case  is  further  complicated  l)y  the  fact  that  the  government  of  the 
Cherokee  Nation  is  passing  away;  that  it  has  already  ceased  to  possess 
a  judiciary,  and  that  on  the  4th  of  ^larch.  IIMH').  it  will,  to  all  intents 
and  purposes,  expire. 

The  action   instituted   in   this  court  by  the  Cherokee  Nation  was 
properly  an  action  at  law  to  recover  a  liquidated  amount  of  money 
upon  an  express  contract.     But  the  act  1st  July.  19t»2  (82  Stat.  L., 
p.  716.  S68),  under  which  it  was  instituted,  authorized  the  court  to 
adjudicate  any  claim  which  the  Cherokee  Nation  "or  any  band  thereof 
might  have  against  the  United  States,  with  "'"full  authority  l)y  proper 
orders  and  process  to  make  parties  to  an}'  such  suit  <ill  jurxonx  ivJiose  ( 
presence  in  tlie  lifigatiou  it  .'mii/  d, nn   lu^crssari/  or  projier  to  the  tinal  , 
determination  of  the  matter  in  controversv."'     The  supplemental  act,' 
8d    March,    1!)(I8    (32   Stat.    L..    p.    '.♦;)()),   expressly   authorized    "the. 
Eastern  Cherokees.  so  called,  inckiding  those  in  the  Cherokee  Nation', 
and  those  wdio  remained  east  of  the  Mississi})pi  Kiver."  to  come  in  and 
prosecute  their  claims,  with  po\v(M'  to  the  court  "also  to  determine  as 
between  the  ditferent  claimants,   to  whom  the  judgment  so  rendered 
equitably   belongs."     The   case,  then,    being   that   of   many   per.sons 
severally  interested  in  a  conunoii  fund,  is  one  of  which  ecpiity  takes 
jurisdiction;   and  the  several  >uits  merged  by  interpleader  into  one 
have  l)ecome  a  suit  in  ecjuity. 

While  the  Cnited  States  iia\«'  always,  or  nearly  always,  treated  the 
members  of  an  Indian  tribe  as  connnunal  owners,  they  have  never 
re(iuired  thtit  all  the  coinmunal  owners  shall  join  in  th(^  conveyance  or 
cession  of  th(»  land.  From  the  necessities  of  the  case  the  negotiations 
hav(^  been  with  re])resentatives  of  the  owners.  The  chiefs  and  head- 
men have  ordinarily  l)eeii  the  ])crsons  who  carried  on  the  negotiations 
and  who  signed  the  treaty.  lUit  they  have  not  formed  a  body  ))olitic 
or  a  body  corporate;  and  they  have  not  assumed  to  hold  the  title  or  be 
entitled  to  the  purchase  nionew  They  have  sinii)ly  acted  as  represiMit- 
atives  of  the  owners,  luaking  the  cession  on  their  behalf  but  allowing 
them  to  receive  the  consideialion  i»  r  cdjiifn.      In  the  pi-esent  case  the 

L'24S1— 05 2 


10 

Cherokee  Nation  takes  the  place,  so  far  as  comniunal  ownership  is 
involved,  of  the  chiefs  and  headmen  of  the  uncivilized  tribes.  This, 
too,  is  consonant  with  the  usage  of  nations.  The  claims  of  individuals 
against  a  foreign  power  are  always  presented,  not  by  them  individually, 
but  b}"  their  Government.  The  claims  are  pressed  as  international, 
but  the  money  received  is  received  in  trust,  to  be  paid  over  to  the  per- 
sons entitled  to  it. 

As  to  those  Cherokees  who  remained  in  Georgia  and  North  Caro- 
lina, in  Alabama  and  Tennessee,  they  owe  no  allegiance  to  the  Cher- 
okee Nation  and  the  nation  owes  no  political  protection  to  them.  But 
the}",  as  conmiunal  owners  of  the  lands  east  of  the  Mississippi,  at  the 
time  of  the  treaty  of  1835.  were  equallv  interested,  with  the  conuiiunal 
owners  who  were  carried  to  the  west,  in  the  ^55,000.000  fund  which 
was  the  consideration  of  the  cession,  so  far  as  it  was  to  be  distributed 
2Jer  capita.  The  Cherokee  Nation  was  not  bound  to  prosecute  their 
claims  against  the  United  States  for  the  unpaid  balance  of  the 
$5,000,000  fund ;  but  their  rights  were  inextricably  woven  with  the 
rights  and  equities  of  the  Cherokees.  who  were  citizens  of  the  nation; 
and  the  nation  properly  made  no  distinciion  when  parting  with  the 
Outlet,  but  demanded  justice,  from  the  Cherokee  point  of  view,  for 
all  Cherokees  who  had  been  wronged  b}'  the  nonfultillment  of  the 
treaty  of  New  Echota.  As  to  these  Eastern  nonresident  Cherokee 
aliens  the  nation  acted  simply  as  an  attornev  collecting  a  debt.  In  its 
hands  the  money's  would  be  an  implied  trust  for  the  benetit  of  the 
equitable  owners. 

After  a  careful  consideration  of  the  circumstances  and  conditions  of 
these  cases,  the  court  is  of  the  opinion  that  the  moneys  awarded  should 
be  paid  directly  to  the  equitable  owners.  A  great  change  has  come 
within  a  few  years  both  as  to  the  powers  and  the  responsibilities  of  the 
Cherokee  Nation.  Its  statute  went  to  the  full  extent  of  the  civil  law 
in  making  the  Government  liable  to  all  persons  being  citizens  of  the 
nation:  **The  Cherokee  Nation  shall  be  liable  to  all  persons  whatever, 
citizens  of  the  nation,  having  claims  at  law  or  equit}'  against  her,  to 
the  same  extent  as  individual  persons  are  liable  to  each  other,  and  may 
be  sued  bv  any  citizen  having  a  cause  of  action."     (Code  ISTI:.  p.  21:0, 

But  its  judiciary  has  ceased  to  exist,  and.  as  has  before  been  said. 
the  nation  itself  as  a  government  will  cease  to  exist.  '"The  constitu- 
tion of  the  Cherokees  was  a  wonderful  adaptation  to  the  circumstances 
and  conditions  of  the  time,  and  to  a  civilization  that  was  yet  to  come. 
It  was  framed  and  adopted  by  a  people,  some  of  whom  were  still  in  the 
savage  state  and  the  better  portion  of  whom  had  just  entered  upon 
that  stage  of  civilization  which  is  characterized  by  industrial  pursuits, 
and  it  was  framed  during  a  period  of  extraordinary  turmoil  and  civil 
discord,  when  the  greater  part  of  the  Cherokee  people  had  just  been 
driven  by  military  force  from  their  mountains  and  valleys  in  Georgia, 
and  been  brought  by  enforced  immigration  into  the  country  of  the 
Western  Cherokees:  when  a  condition  of  anarch}*  and  civil  war  reigned 
in  the  Territory — a  condition  which  was  to  continue  until  the  two 
branches  of  the  nation  should  be  united  under  the  treaty  of  1S46  (27 
C.  Cls.  K.,  1);  yet  for  more  than  half  a  century  it  has  met  the  require- 
ments of  a  race  steadily  advancing  in  prosperity  and  education  and 
enlightenment  so  well  that  it  has  needed,  so  far  as  they  are  concerned, 
no  material  alteration  or  amendment,  and  deserves  to  be  classed  among 


11 

the  few  great  works  of  intelligent  statesmanship  which  outlive  their 
own  time  and  continue  through  succeeding  genei'ations  to  assure  the 
rights  and  guide  the  destinies  of  men.  And  it  is  not  the  least  of  the 
successes  of  the  constitution  of  the  Cherokees  that  the  judiciary  of 
another  nation  are  al)le.  with  entire  confidence  in  the  clearness  and 
wisdom  of  its  provisions,  to  administer  it  for  the  protection  of  Chero- 
kee citizens  and  tlie  maintenance  of  their  personal  and  political  rights." 
{Journeyeal'e  v.   Cht^rol'te  Xatio)i,  2S  C  Cls.  K.,  2S1.  317.) 

Since  those  words  were  written  a  hopeless  development  has  taken 
place  in  the  ati'airs  of  this  people.  It  has  been  with  them  as  it  has 
been  with  other  nations — as  it  has  l)een  with  families  and  individuals — 
to  rise  in  the  times  of  their  tribulation,  but  to  sink  under  the  enervat- 
ing blessings  of  prosperity. 

"On  the  1st  August.  1838,  while  the  dispirited  throng  of  Cherokee 
exiles  paused  in  their  march  at  a  temporary  halting  place,  the  name 
of  which  does  not  appear  on  the  map  nor  in  the  list  of  post-offices, 
and  which  is  known  only  from  what  transpired  there  as  'Aquohee 
camp,'  the}^  were  able  to  declare  through  the  hand  of  their  great 
statesman  and  leader,  Koss,  that — 

"■  Whereas  the  Cherokee  peo})le  have  existed  as  a  distinct  national 
connnunity  in  the  possession  and  exercise  of  the  appropriate  and  essen- 
tial attributes  of  sovereignty  for  a  period  extending-  into  antic] uity 
beyond  the  dates  and  record  and  memory  of  man: 

'"And.  whereas  these  attributes,  with  the  rights  and  franchises 
which  they  involve,  have  never  been  relincjuished  1)v  the  Cherokee 
people,  but  are  now  in  full  force  and  virtue: 

'"And  whereas  the  natural,  political,  and  moral  relations  su))sisting 
among  the  citizens  of  the  Cherokee  Nation  toward  each  other  and 
toward  the  body  politic  can  not.  in  reason  and  justice,  be  dissolved  by 
the  expulsion  of  the  nation  from  its  own  territory  by  the  power  of  the 
United  States  Government: 

'" Re><oived,  thertfovk^  hy  the  luit'ional  cominittee  and  romic/J  and 
people  of  the  Cherokee  Xat 'ion  ^  !n  (ji-neral  coancil  assemhl<(l.  That  the 
inherent  sovereignty  of  the  Cherokee  Nation,  together  with  the  con- 
stitution, laws,  and  usages  of  the  same,  are.  and  by  the  authcn'ity 
aforesaid  are  hereby  declared  to  be,  in  full  force  and  virtue,  and  shall 
continue  so  to  be  in  perpetuity,  suljject  to  such  modifications  as  the 
general  welfare  mav  render  expedient."  {Western  t'litroJiis'S  v.  Un'itrd 
States,  27  C.  Cls.  K.,  1,  29.) 

This  declaration  was  an  heroic  resolve  amid  the  most  adverse  cir- 
cumstances to  preserve  forever  the  autonomy  of  the  Cherokee  people. 
It  was  not  made  in  vain  for  the  generation  which  so  resolved.  But  the 
ease  of  affluence  and  the  inevitable  demoralization  of  wealth  have 
accom])lished  where  the  military  power  of  the  United  States  and  the 
cori'upt  methods  of  their  agents  failed:  and  within  the  passing  of  less 
than  three  generations  the  perpetuity  of  the  constitution  and  laws  and 
usages  of  the  Cherokee  people  will  have  come  to  an  end. 

In  this  condition  of  att'airs  the  court  must  regard  the  Cherokee 
Nation  as  in  a  condition  somewhat  analogous  to  tliat  of  a  trustee  or 
receiver  who  has  become  insolvent:  that  is  to  say.  as  a  piu'son  which 
should  not  be  intrusted  with  the  receipt  and  distribution  of  the  moneys 
belonging  to  other  persons. 


12 

The  pei'sons  to  whom  (listril)iition  of  this  fund  of  §1,111.-84.70 
with  accrued  interest  would  be  made  if  they  were  now  living-  would 
he  the  eonununal  owners  of  the  Cherokee  lands  east  of  the  Mississippi. 
By  the  tripartite  treaty  of  ls46  the  western  and  the  eastern  Chero- 
kees  were  placed  on  the  same  footing-  with  regard  to  all  lands  east  of 
the  Mississippi  and  with  regard  to  the  funds  derived  from  them.  It 
follows,  necessarily,  that  each  and  all  of  the  present  communal  owners, 
whether  on  the  east  or  the  west  of  the  Mississippi,  and  whether  the 
descendants  of  eastern  or  western  Cherokees,  have  the  same  individ- 
ual interest  in  the  fund  and  will  be  entitled  to  like  amount yy,?/'  capita. 

A  decree  will  be  entered  in  this  case  following  the  form  of  that 
which  was  entered  in  the  case  of  WJutmir(,  ti'ustce.,  v.  Cherol'ee  JVation 
(30  C.  Cls.  R.,  ISO).     It  will  provide: 

That  the  Cherokee  Nation  recover  upon  the  agreement  with  the 
United  States  concluded  on  the  19th  December,  1S!»1,  and  ratified  by 
the  Ignited  States  3d  March.  1S93  (27  Stat.  L..p.  640.  SIO),  the  amounts 
found  due  in  the  account  rendered  thereunder  by  the  United  States, 
to- wit : 

The  value  of  tliree  tracts  of  land  containing  1,700  acres,  at  81.25  per 

acre S2,  125.  00 

Amount  paid  for  removal  of  p]astern  Cherokees  to  the  Indian  Ter- 
ritory     1, 111, 284. 70 

Amount  received  by  receiver  of  public  moneys  at  Independence,  Kans.  432.  28 

Interest  on  si  5,000  of  Choctaw  funds,  applied  in  1863  to  relief  of  indi- 
gent Cherokees 20,  406.  25 

That  the  amount  of  l$ii,125,  with  interest  thereon  from  February  2T, 
1819,  to  date  of  ])avment,  nevertheless  be  retained  by  the  Secretary  of 
the  Interior  and  credited  by  the  United  States  to  the  principal  of  the 
('herokee  school  fund  in  their  possession  and  of  which  they  are  trustees; 

That  the  amount  of  S^O.-KHl.io.  together  with  int<n"est  thereon  from 
July  1, 18l»3,  to  date  of  the  restoration  of  the  fund.  ])e  likewise  retained 
by  the  Secretary  of  the  Interior  and  credited  to  the  Cherokee  national 
fimd  in  the  possession  of  the  United  States  and  of  which  they  are 
trustees: 

That  the  amount  of  ^1,111,284.70,  together  with  interest  thereon 
from  June  12.  1838,  to  a  day  when  the  Secretary  of  the  Interior  shall 
l)e  read}'  to  make  payments,  as  hereinafter  provided,  nevertheless  be 
paid  directly  to  eonununal  owners  being  Cherokees  by  blood,  whether 
on  the  eastern  or  western  side  of  the  Mississippi  River.  And  to  that 
end  the  Secretary  of  the  Interior  is  authorized  to  appoint  one  or  more 
commissioners  to  proceed  to  the  Cherokee  country  and  to  the  country 
of  the  Cherokees  residing  east  of  the  Mississippi  to  ascertain  and 
report  to  the  Secretary  the  facts  necessary  for  the  formation  of  rolls 
of  all  Cherokees  by  blood,  the  expenses  of  making  out  and  preparing 
such  rolls  to  be  a  charge  upon  and  paid  out  of  the  fund  awarded  b\" 
the  decree. 

The  decree  will  also  provide  for  the  pavment  of  the  fund  to  the 
parties  per  capita,  the  charge  of  distribution  likewise  to  be  a  charge 
upon  the  fund. 

The  decree  will  also  provide  for  the  payment  to  the  treasurer  of  the 
Cherokee  Nation  ^432.28.  together  with  interest  thereon  from  Januaiy 
1,  1874.  to  date  of  payment,  as  likewise  set  forth  in  said  account. 

The  decree  will  also  provide  for  the  compensation  of  counsel  and 
expenses  and  disl)ursements  incident  to  the  litigation. 


/  / 


18 


"Weldox,  J.,  coiu-urrino-: 

Without  going-  into  the  merits  of  this  controversy  on  the  ditt'erent 
treaties  made  between  the  parties  to  this  proceeding,  and  the  hiws  of 
the  United  States  enacted  from  time  to  time  attecting  the  liability  and 
relation  of  the  parties.  I  come  to  consider  the  legal  etlect  of  the  find- 
ing made  by  the  agents  and  otiicers  of  the  United  States  under  the 
agreement  of  December  l'.».  Isnl.  descri])ed  in  the  act  of  ^Nlarch  ?>  (27 
Stat.  L.,  p.  tUO,  sec.  l»i). 

Commencing  with  the  year  iSo."!.  in  which  year  the  treaty  of  New 
Echota  was  made  with  the  Eastern  Band  of  Cherokee  Indians,  dis- 
putes and  ditierences  existed  betAveen  the  United  States  and  the  Indi- 
ans which  culminated  in  the  year  1891,  when  a  treaty  was  made 
involving  the  sale  and  purchase  of  a  district  of  country  amounting  in 
the  aggregate  to  over  s,()(m;>.00<>  acres  of  land,  known  as  the  Cherokee 
Outlet.  Aside  from  the  intrinsic  value  of  the  lands  there  was  a  most 
material  consideration  moving  to  the  United  States  in  the  necessity  of 
having  that  tract  of  land:  and.  to  the  end  that  the  United  States  might 
be  the  owner  of  that  splendid  domain  of  territory,  they  agreed  to 
pay  the  Indians  the  sum  of  SS.^oo.ooO;  and.  as  a  further  consideration 
and  inducement  to  the  Indians  to  enter  into  such  an  agreement,  it  was 
stipulated  on  the  part  of  the  United  States  as  follows,  to  wit: 

''The  United  States  shall,  without  delay,  render  to  the  Cherokee 
Nation,  through  an  agent  apj^ointed  by  authority  of  the  national 
council,  a  complete  account  of  moneys  due  the  Cherokee  Nation  under 
any  of  the  treaties  ratitied  in  the  yeai's  ISIT.  1S1;»,  l,si>5.  1828.  is;^>;3. 
1835-36,  1816,  l86t;.  and  l86s  und  any  laws  passed  by  the  Congress  of 
the  United  States  for  the  purpose  of  carrying  said  treaties  or  any  of 
them  into  etiect;  and  upon  such  accounting  should  the  Cherokee  Nation, 
by  its  national  council,  conclude  and  determine  that  such  an  accounting 
is  incorrect  or  unjust,  then  the  Cherokee  Nation  shall  have  the  right 
within  twelve  months  to  enter  suit  against  the  United  States  in  the 
Court  of  Claims,  with  the  right  to  appeal  to  the  Supreme  Court  of 
the  United  States,  by  eitlicu'  party,  for  any  declared  or  alleged  amount 
of  money  promised  but  withheld  l)y  the  United  States  from  the  Chero- 
kee Nation,  under  any  of  said  treaties  or  laws,  which  may  be  claimed 
to  be  omitted  from  or  improperly  or  unjustly  or  illegally  adjusted  in 
said  accounting.  And  the  Congress  of  the  United  States  shall  at  it> 
next  session  after  such  case  shall  be  finally  decided  and  certified  to 
Congress,  according  to  law.  appropi'iate  a  sufficient  sum  of  money  to 
pa}'  such  judgment  to  the  Cherokee  Nation  should  judgment  be  ren- 
dered in  her  favor:  or  if  it  shull  be  found  upon  such  accounting  that 
any  sum  of  monev  has  l)een  so  withlield.  the  amount  shall  l)e  duly 
appropi'iated  by  Congress,  payable  to  the  Cherokee  Nation,  upon  the 
order  of  the  national  council,  such  aj^propriation  to  l)e  made  by  C'on- 
gress  if  then  in  session,  and  if  not.  then  at  the  session  immediutely 
following  such  accounting." 

The  subject-niiitter  of  tluM^ousideration  upon  the  partof  tin'  Indians 
was  composed  of  two  element^:  in  th(^  first  they  were  to  receive  the 
sum  of  *r^8, 301 1,000.  a  part  of  the  consideration  of  the  conveyance,  and 
as  the  second  eliMuent  of  consideration  they  were  to  receive  "a  com- 
plete account  of  the  moneys  due  the  CherokcM'  Nation"  under  all  the 
ti'eaties  and  laws  which  from  IslT  to  lS(is  Imd  been  made  or  enacted 
ati'ecting  the  pecuniary  relation-  of  the  partie>.  TIk^  account  was  to 
be  accepted  or  reject(Hi  by  the   Indians  as  tJiey  might  delei'uiine.      It 


14 

was  known  to  them  that  an  alleged  settlement  had  been  made  in  the 
3'ear  1852,  the  legal  effect  of  which  had  always  been  disputed  by  the 
Indians;  and  the  agreement  to  render  an  account  "of  moneys  due" 
"to  an  unlettered  party'"  at  least  would  be  accepted  as  an  oppor- 
tunit}'^  to  be  relieved  from  the  legal  effect  and  binding  force  of  the 
alleged  settlement,  by  and  through  which  the}'  had  been  held  at  arm's 
length  through  more  than  a  generation  of  their  people. 

Then  follows  another  provision  well  calculated  to  operate  on  the 
minds  of  the  Cherokee  Nation  as  a  special  and  material  inducement  to 
the  making  of  the  treaty  or  agi'eement  of  1891.  "And  upon  such 
accounting  should  the  Cherokee  Nation  b}^  its  national  council  con- 
clude and  determine  that  such  an  accounting  is  incorrect  or  unjust, 
then  the  Cherokee  Nation  shall  have  the  right  within  twelve  months  to 
enter  suit  against  the  United  States  in  the  Court  of  Claims,"  with  the 
right  of  appeal  to  the  Supreme  Court  of  the  United  States  by  either 
party  for  any  declared  or  alleged  amount  of  moneys. 

The  consideration  therefore  consist  of  different  elements  of  induce- 
ments, and  in  law  those  elements  constitute  and  form  the  basis  upon 
which  the  agreement  rests,  and  none  can  be  eliminated  without  the 
destruction  of  the  entire  force  of  the  agreement. 

The  consideration  though  in  parts  and  sections  is  a  unit,  and  to  dis- 
turb or  eliminate  one  element  is  to  destro}"  the  whole.  The  consider- 
ation is  the  basis  of  the  contract,  and  without  its  preservation  as  a 
whole  the  contract  falls.   . 

The  court  must  therefore  assume  that  without  all  of  the  considera- 
tions the  Cherokee  Nation  would  not  have  released  to  the  United 
States  a  district  of  country  large  enough  and  rich  enough  to  be  one  of 
the  States  of  the  Union. 

Much  discussion  has  been  indulged  in  upon  the  question  as  to 
whether  the  finding  which  was  submitted  to  the  Cherokee  Nation  is  an 
award,  and  if  not  an  award,  an  account  stated.  It  is  not  necessary  to 
indulge  in  Ijlack-letter  learning  upon  the  legal  effect  or  character  of 
the  *' account  of  moneys  due  the  Cherokee  Nation."  It  was  a  state- 
ment of  the  account  founded  upon  the  legal  theory  of  the  Cherokee 
Nation,  and  for  which  the  Indians  had  struggled  through  the  years 
from  1835  to  1891.  It  to  them  was  a  slow  and  tardy  relief  from  the 
alleged  iniquities  and  frauds  of  1835,  which,  as  they  always  thought, 
was  the  inception  of  their  woes. 

Upon  the  question  as  to  whether  the  account  rendered  is  in  law  an 
award  or  act-ount  stated,  or  whether  it  is  either,  is  wholly  immaterial 
to  the  proper  settlement  of  the  issue  of  this  proceeding,  and  it  is  profit- 
less to  sagely  balance  the  common-law  question  as  to  what  constitutes 
either.  It  is  sufficient  for  the  purpose  of  this  litigation  to  say  that  it 
is  a  material  and  lawful  part  of  the  consideration  of  a  contract  made 
by  and  between  competent  parties  upon  the  subject-matter  of  which 
they  had  plenary  jurisdiction. 

In  this  connection  it  is  apt  to  quote  what  the  Suprenie  Court  has 
said  in  the  case  of   Wo/'cr.str/'  v.  State  of  Georgia  (6  Peters,  05:i): 

•"The  language  used  in  treaties  should  never  be  construed  to  their 
prejudice.  If  words  l)e  made  use  of  which  are  susceptible  of  a  more 
extended  meaning  than  the  plain  import  as  connected  with  the  tenor 
of  the  ti'eaty.  they  should  be  construed  as  used  in  the  latter  sense. 

"How  the  words  of  the  treaty  were  understood  by  this  unlettered 
people  rather  than  in  their  critical  meaning  should  form  the  rule  of 


15 

construction.  The  question  niiiy  be  asked.  Is  no  distinction  to  be 
made  l)etween  a  civilized  and  savaoe  peopled  Are  our  Indians  to  be 
placed  upon  a  footiny"  with  the  nations  of  Europe  with  whom  we  have 
made  treaties^ 

''The  inquiry  is  not  what  station  shall  be  ^iven  to  the  Indian  tril>es 
in  this  country,  but  what  relation  have  thev  sustained  to  us  since  the 
commencement  of  our  Governments  We  have  made  treaties  with 
them,  and  are  those  treaties  to  l)e  disregarded  on  our  part  because 
thev  were  entered  into  witii  an  uncivilized  peopled  Does  this  lessen 
the  oblioation  of  such  treaties!'  By  entering-  into  them  have  we  not 
admitted  the  power  of  this  people  to  bind  themselves  and  impose  obli- 
gations on  us '( '• 

So,  in  5  Wallace,  737: 

'•Rules  of  interpretation  fa\  oraljle  to  the  Indian  tribes  are  to  be 
adopted  in  construing  our  treaties  with  them.  Hence  a  provision  in 
an  Indian  treaty  which  exempts  their  lands  from  'lev}',  sale,  and  for- 
feiture' is  not,  in  the  absence  of  an  expression  so  to  limit  it,  to  be 
contined  to  a  levy  and  sale  under  ordinary  judicial  proceedings  only, 
but  it  is  to  be  extended  to  levy  and  sale  by  county  officers  for  non- 
payment of  taxes."' 

Congress  having  failed  to  pay  the  amount  found  due  under  the  treaty 
of  1891  by  the  report  of  Messrs.  Slade  and  Bender,  passed  an  act  of 
1902,  bv  virtue  of  which  this  court  has  jurisdiction. 

The  matter  of  complying  with  the  treaty  of  lSi>l  was  left  by  the 
appropriation  act  (to  defray  the  expense  of  furnishing  a  statement  to 
the  Indians)  to  the  Conunissioner  of  Indian  Affairs  under  the  direction 
of  the  Secretary  of  the  Interior  as  shown  l)y  the  comnuuiication. 

The  Secretary  in  his  comnuuiication  to  the  Speaker  of  the  House 
also  transmits  "'a  certified  cojiy  of  the  Cherokee  national  council  accept- 
ing such  accounting." 

Up  to  that  point  the  executive  officers  of  the  (xovernment  were  pro- 
ceeding step  by  step  in  the  fullillment  of  the  promise  made  in  the 
treaty  of  1891,  upon  the  faith  of  which  the  United  States  had  acquired 
and  were  then  in  the  enjoyment  of  the  "Outlet." 

The  United  States  had  l)ought  the  land  of  the  Indians  not  for  the 
sum  of  ^S.3<)0.0(Mf.  Init  for  that  sum  and  other  undertakings  vital  as 
an  inducement  to  the  Indians  in  making  the  agreement  of   18'.>1. 

C'ourts  can  not  appoition  the  consideration  of  a  contract  and  say 
this  is  material  and  that  is  innuatcn'ial:  parties  have  the  right  to 
measure  the  value  of  what  they  contract  for.  and  are  (Mititle(l  to  have 
that  recognized  l)y  the  courts. 

The  Congress  in  ratification  of  the  plan  of  settlement,  as  pi-o\ided  in 
the  treaty  of  1891.  passed  an  act  appropriating  the  sum  of  S.-).ooo  for 
the  purpose  of  ascertaining  the  amount  due  the  Cherokee  Nation,  and 
in  pursuance  of  that  act  the  Secretary  of  the  Interior  appoint<'d  .lames 
A.  Slade  and  Joseph  T.  I'x'iuh'i-  to  state  the  account  then  (»\i>ting 
between  the  United  States  on  one  liand  and  the  Cheroke»>  Nation  on 
the  other,  and  in  pursuance  of  such  a])pointm(Mit  and  u])on  the  fuiuhi- 
mental  authority  of  the  agreement  with  the  Indians  ma<le  an  examina- 
tion and  upon  the  result  of  that  examination  made  a  report  of  th(> 
indebtedness  of  the  United  States  founded  u])on  the  theory  that  the' 
removal  of  the  Indians  under  the  vai'ious  treaties  was  to  he  at  the  cost 
of  the  United  Stati's.      It  i-~  not  pri'tended  that  any  mistal<e  \\as  made 


16 

b}'  the  accountants  upon  the  legal  theory  which  they  adopted  a.s  the 
basis  of  the  liability  of  the  defendants. 

L'pon  the  receipt  of  that  report  the  SecretaiT  of  the  Interior  trans- 
mitted to  Congress,  through  the  Speaker  of  the  House,  the  report  of 
the  expert  accountants  in  the  following  communication: 

"Department  of  the  Interior, 

"  WaHldngton^  January  7th^  1895. 

''Sir:  1  have  the  honor  to  herewith  transmit,  !n  compliance  ivith 
the  prorwions  of  the  third  suhd! vision  of  article  ta'o  of  the  agreement 
made  December  19th.,  189U  with  the  Cherokee  Indians,  ratified  b}"  the 
act  of  Congress  approved  March  3rd.  1893  (27  Stats.,  643),  a  certified 
copv  of  a  compJtte  account  ofjnoney  due  the  Cherol'ee  Xation  under  anv 
of  the  treaties  made  in  the  years  I'SIT,  1819.  1828,  1835-6,  1846.  1866, 
and  1868,  and  any  laws  passed  by  the  Congress  of  the  United  States 
for  the  purpose  of  cariying  said  treaties  or  any  of  them  into  effect, 
■prepared  in  accordance  icith  the  provisions  of  said  act  of  March  3rd, 
1893,  together  Avith  a  certified  cop}"  of  the  Cherokee  national  council 
accepting  such  accounting. 
"Very  respectfully. 

"Hoke  Smith,  Secretary. 

"The  Speaker  of  the  House  of  Representatives.'' 

The  account  when  rendered  to  the  Cherokee  Nation  proved  accept- 
able to  it  and  upon  the  faith  of  its  acquiescence  in  the  report,  as  shown 
hy  the  letter  of  the  Secretary  of  the  Interior,  the  council  of  the  nation 
passed  a  formal  acceptance  of  it. 

If  the  United  States  were  dissatisfied  with  the  report  of  Slade  and 
Bender,  the  dissatisfaction  shordd  have  been  manifested  as  soon  as  it 
was  known  to  the  authorities  of  the  United  States,  who  had  in  charge 
the  matter,  and  not  after  the  Cherokee  council  had  formally  accepted 
the  report  as  a  cori-ect  statement  of  the  account  between  the  parties, 
and  a  formal  delivery  to  the  Cherokee  Nation  of  a  part  of  the  consid- 
eration on  which  the  bargain  and  sale  of  the  land  were  made. 

The  appointment  of  the  expert  accountants,  the  acceptance  from 
them  of  the  result  of  the  examination,  and  the  transmittal  of  the  report 
to  the  Cherokee  Nation  was  the  oflicial  act  of  the  Secretary  of  the 
Interior,  the  officer  who  above  all  others  has  jurisdiction  of  the  Indi- 
ans of  the  Ignited  States.  It  is  that  Department  of  the  Government 
which  deals  with  the  finances  and  all  other  interests  belonging  to  the 
Indians  of  the  United  States.  The  Secretary  of  the  Interior  and  the 
instrumentality  of  his  Pepartment  is  the  medium  through  which  the 
United  States  deals  with  •'"the  wards  of  the  nation." 

The  report  which  was  to  be  furnished  to  the  Indians  for  their 
acceptance  or  rejection  has  incident  to  it  another  important  qualifica- 
tion; and  that  is  if  the  Indians  were  dissatisfied  with  the  statement  of 
moneys  due  then  they  had  the  right  to  bring  a  suit  against  the  United 
States  within  twelve  months  to  settle  by  judicial  determination  the 
respective  right  of  the  parties.  Relying  on  the  good  faith  of  the 
Government,  the  council  of  the  Cherokee  Indians  accepted  the  state- 
ment of  Slade  and  Bender  and  thereby  waived  the  right  to  bring  a  suit 
against  the  United  States;  and.  that  right  being  waived,  founded  on  the 
action  of  the  United  States,  are  they  not  now  estopped  from  denying 
the  legal  effect  of  their  own  act  i     The  Indians  were  misled  by  the 


act  of  the  L'nited  States  when  they  assumed  that  the  account  after 
acceptance  woukl  be  dealt  with  in  pursuance  of  the  other  reciuircnients 
of  the  treaty.  Consider  the  rig-hts  of  the  litigants  in  the  light  of  the 
law  which  has  been  announced  for  nearly'  a  century  by  the  Supreme 
Court  of  the  United  States,  the  fundamental  theory  of  which  is  that 
language  must  never  l)e  construed  to  tiieir  prejudice.  (  ]\'o/-rt.^fr/-  v. 
Staff/  of  (rt'orc/'Ci.  stijn'd.) 

The  position  of  the  defendants  in  refusing  to  abide  by  the  result  of 
the  treaty  of  1S1>8.  consununated  as  it  was  by  the  aet  of  the  Cherokee 
council,  the  executive  ottieers.  and  the  lawfully  tuithorized  agen.ts  of 
the  United  States,  is  not  keeping  faith  with  the  wards  of  the  nation  in 
the  spirit  of  that  "  justice  and  reason"  recognized  l)y  the  courts  when 
dealing  with  the  oldigation  of  the  United  States  as  the  guardian  of  the 
Indian. 

In  the  case  of  the  Chnrfum  y.  Th,  FnHril  Sfut.s  (119  U.  S.  K..  p.  1) 
it  is  said  in  the  syllal)i: 

''The  relation  between  the  I'nited  States  and  the  Indian  tribes.  Ijeing 
those  of  a  superior  toward  an  inferior  who  is  under  its  care  and  con- 
trol, its  acts  touching  them  and  its  promises  to  them,  in  the  execution 
of  its  own  policy  and  in  the  furtherance  of  its  own  interests,  are  to  be 
interpreted  as  justice  and  reason  demand  in  cases  where  power  is 
exerted  by  the  strong  over  those  to  whom  they  owe  care  and  protec- 
tion.    (U/i/'fed  Stctc^  V.  J\jf(/a//n/,  US  V.  S..  oT5.  cited  and  applied.)"" 

I  concur  in  the  result  reached  by  the  court  as  exemplitied  in  the 
opinion  of  the  Chief  Justice. 

Peelle,  fl..  concurring, 

I  concur  in  the  conclusion  of  the  court  that  there  should  be  a 
recovery  against  the  United  States  for  the  several  amounts  found  due 
by  the  experts  Slade  and  Bender,  but  in  my  view  of  the  case  tliat  con- 
clusion should  be  sustained  upon  the  theory,  or  assumption,  as  the 
experts  say.  "that  the  United  States  was  to  pay  the  expense  of 
removal"*  of  the  eastern  Cheroke<'s  from  their  eastern  home  to  the 
Indian  Territory. 

If  the  United  States  are  so  liabU^  th(Mi  the  defendants  concede  that 
the  account  as  stated  l)v  Slade  and  Bender  is  correct. 

The  first  and  main  question  to  hr  determined,  therefore,  is  as  to  the 
liability  of  the  United  States,  and  it  is  conceded  that  if  such  lial)ility 
exists  it  arose  under  the  treaties  of  is;3.5-3t)  and  1846  (7  Stats.  L.. 
478.  and  !>  Stats.  L..  871). 

To  interpret  correctly  the  treaty  of  1885-3H  within  the  s})irit  of  the 
decisions  of  the  Supreme  Court,  it  is  essential  to  know  how  the  Cher- 
okee j)eople  understood  the  terms  of  the  ti'caty  and  whether  they  had 
probable  grounds  for  such  undt-rstanding. 

Practically  from  the  beginning  of  the  CTO\ernment — to  make  room 
for  white  settlers — it  was  the  [)olicv  of  the  United  States  to  encoui'age 
the  removal  of  the  Indians  domiciled  in  tiie  Kastern  States  to  the  ter- 
ritoiT  west  of  the  Mississip[)i  Ivixm'.  This  policy  is  now  manifest 
from  the  various  tretities  entered  into  by  the  I'nited  States  with  the 
several  tribes — now  a  i)art  of  the  history  of  the  country — by  whii-h 
the  Indians  ceded  their  hinds  situate  in  the  Eastern  States  to  the  (iov- 
ernment  and  migrated  to  territory  ]irovided  for  them  we-t  of  the 
Mississippi  River. 


18 

By  the  treat}'  of  islT  with  the  Cherokee  Indians  (7  Stat.  L.,  156),  in 
furtherance  of  promises  previously  made  by  the  President  that  those 
Indians  who  desired  to  contiime  the  life  of  hunting  instead  of  settling 
down  to  agriculture  and  civilized  life,  should  have  homes  in  the  West 
on  the  waters  of  the  Arkansas  and  White  rivers  (to  which  some  of 
the  Indians  had  migrated),  it  was  provided  in  article  6,  in  addition  to 
the  compensation  therein  provided  for  the  improvements  left  by 
them,  that  to  aid  in  their  removal  the  United  States  agreed  ''  to 
furnish  flat-bottomed  boats  and  provisions  sufficient  for  that  pur- 
pose. *  *  *  The  boats  and  provisions  promised  to  the  emigrants 
are  to  be  furnished  by  the  agent  on  the  Tennessee  River,  at  such  time 
and  place  as  the  emigrants  may  notify  him  of:  and  it  shall  be  his  duty 
to  furnish  the  same." 

By  the  treaty  of  1828  with  the  Western  Cherokees  (7  Stats.  L.,  311) 
Avho  had  migrated  to  Arkansas  Territory  under  the  promise  of  the 
President  and  the  treaties  of  1817  and  1819,  whereby  the  lands  of  the 
Western  Cherokees  in  that  Territory  were  exchanged  for  lands  in  the 
Indian  Territory,  the  United  States  by  article  8,  to  encourage  the  Chero- 
kees residing  East  to  join  their  brothers  in  the  West,  agreed  in  addi- 
tion to  giving  them  certain  specilied  articles,  to  pay  the  cost  of  their 
emigration  and  to  furnish  them  with  provisions  for  their  support  on 
the  way  and  provisions  for  twelve  months  after  their  arri^'al  at  the 
agency,  and  in  addition  thereto  to  give  each  person  who  took  along- 
with  him  four  persons  as  emigrants  and  permanent  settlers  the  sum  of 
§150. 

Thus,  in  addition  to  paying  the  expenses  of  removal  and  subsistence 
as  there  stated,  the  United  States  agreed,  by  way  of  encouraging  them 
to  induce  others  to  migrate,  to  pay  a  bonus  to  each  individual  taking- 
four  such  persons  with  him. 

The  treaty  of  1833  (7  Stats.  L.,  41-1),  as  provided  1)y  article  5  thereof, 
was  supplementary  to  the  treaty  of  1828  and  was  "not  to  var}' the 
rights  of  the  parties  to  said  treaty  any  further  than  said  treaty  is  incon- 
sistent with  the  provisions  of  this  treaty,  now  concluded,  or  these  arti- 
cles of  convention  and  agreement." 

It  was  not  onh'  the  policy  of  the  United  States,  as  i)efore  stated,  to 
encourage  the  removal  of  the  Indians  westward,  but  it  was  their 
policy  to  pay  the  expenses  of  their  removal  and  their  subsistence,  as. 
shown  by  the  treaties  with  the  Choctaws  in  is2i>  (7  Stats.  L..  210); 
with  the  Creeks  in  1826  (7  Stats.  L..  2s6):  with  the  Chickasaws  in 
1S32  (7  Stats.  L.,  381) :  with  the  Seminole  in  ls32  (7  Stats.  L..  368),  and 
with  the  Delawares  and  the  Delawares  and  Shawnees  in  1n29  and  1832 
(7  Stats.  L..  327  and  397).  Can  it  be  doubted  that  what  was  thus 
done  svas  well  known  to  the  Cherokee  Indians  at  the  time  of  the  treaty 
of  1835  (  Indeed,  when  a  draft  of  the  latter  treaty  was  tirst  submitted 
to  them  in  general  council  at  Red  Clay,  October  23.  1835,  there  was 
read  and  interpreted  to  them  a  letter  from  President  Jackson  in  which, 
among  other  things,  he  said  "for  the  removal,  at  the  expense  of  the 
United  States,  of  your  whole  people:  for  their  subsistence  for  a  year 
after  their  arrival  in  their  new  country,  and  for  a  gratuity  of  'S150  to 
each  person."     (H.  R.  Docs.,  vol.  7,  No.  286.  p.  41.  2-tth  Cong.,  1st  sess.) 

And  so  the  eighth  article  of  the  treaty  of  1835  provided: 

"The  United  States  also  agree  and  stipulate  to  remove  the  Chero- 
kees to  their  new  homes  and  to  subsist  them  one  year  after  their 
arrival  there  and  that  a  sutiicient  number  of  steamboats  and  baggage 


19 

wagons  .shall  be  furnished  to  remove  them  comt'ortal)Iy,  and  so  as  not 
to  endano-er  their  health,  and  that  a  physician  well  supplied  with 
medicines  shall  accompany  each  detachment  of  emio-rants  removed  hy 
the  (xovernment.  Such  persons  and  families  as  in  the  opinion  of  the 
emigrating"  agent  are  capable  of  suV)sisting  and  removing  themselves 
shall  l)e  permitted  to  do  so;  and  they  shall  be  allowed  in  full  for  all 
claims  for  the  same  twenty  dollars  for  each  member  of  their  family: 
and  in  lieu  of  their  one  year's  rations  they  shall  be  paid  the  sum  of 
thirty-three  dollars  and  thirty-three  cents  if  they  prefer  it. 

"Such  Cherokees  also  as  reside  at  present,  out  of  the  nation  and 
shall  remove  with  them  in  two  years  we.^t  of  tlie  Mississippi  shall  be 
entitled  to  allowance  for  removal  and  subsistence  as  above  provided/' 

Up  to  this  point,  therefore.  1  take  it  there  can  be  no  well-grounded 
controversy  either  as  to  what  the  (lovernment  had  done  respecting  the 
cost  of  removal  and  su])sistence  of  the  various  tribes  of  Inclians  there- 
tofore removed  to  the  Indian  Territor}',  or  as  to  what  the  purpose  of 
the  Government  was  by  article  8  of  the  treaty  of  1S35  respectuig  the 
like  expense  of  removing  the  Cherokees  to  the  same  Territory. 

The  language  of  the  article  will  not  bear  the  construction  that  the 
Government  was  advancing  money  to  defray  such  expense  or  that  the 
allowances  therein  pi'ovided  to  those  capable  of  removing  themselves 
was  intended  as  a  charge  against  the  treaty  fund. 

But  for  article  1.5  of  the  treaty  it  must  ])e  conceded  that  the  (lovern- 
ment  had  obligated  itself  to  defray  the  cost  of  removal  and  subsistence, 
and  this  was  not  only  in  conformity  with  what  the  Government  had 
theretofore  done  respecting  the  removal  of  other  Indian  tribes.  1)ut 
was  in  conformity  with  the  promise  of  the  President  made  to  the  Indians 
in  general  council  when  a  draft  of  the  treaty  was  first  submitted  to  them 
at  Ked  Clay  some  two  months  before,  in  sul)stantially  the  same  form 
in  which  it  was  finallv  signed  at  New  Echota  in  the  State  of  Georgia. 

Now,  keeping  in  mind  what  has  been  said  respecting  the  understand- 
ing of  the  Cherokee  people  as  to  who  was  to  pay  the  cost  of  their 
removal  and  subsistence,  turn  to  article  1.5,  which  provides: 

"Article  1.5.  It  is  expressly  understood  and  agreed  l)etwcen  the 
parties  to  this  treaty  that  after  deducting  the  amount  which  shall  he 
actually  expended  for  the  payment  for  impi'ovements.  ferries,  claims 
for  spoliations,  removnl.  sul)sistence.  and  debts,  and  claims  u})()n  the 
Chei'okee  Nation,  and  for  the  additional  (luantity  of  lands  and  goods 
for  the  poorer  class  of  Cherokeivs  and  the  several  sums  to  he  invested 
for  the  general  national  funds  pro\ided  for  in  the  several  articles  of 
this  treaty,  the  halance.  whatexer  the  same  may  be.  shall  lie  e(|ually 
divided  l)etween  all  the  people  belonging  to  the  Cherokee  Nation  east, 
according  to  the  census  just  completed:  and  such  Cherokees  as  have 
removed  west  since  June.  1S8;>,  who  are  entitled  by  the  terms  of  their 
enrollment  and  removal  to  all  th(^  benefits  resulting  from  the  tinal  treaty 
between  the  United  States  and  the  Cherokees  east,  they  shall  also 
be  paid  for  their  improvenienls.  according  to  their  ajiproved  value, 
before  their  remoxal.  where  fraud  has  notali'eady  been  ^liown  in  theii" 
valuation." 

Between  the  pr()\'ision>  of  that  article  and  those  of  article  s.  I'e^pcct- 
ing  the  cost  of  removal,  there  is  a  conHict.  and  if  the  oidinaiy  rides  of 
construction  applicable  to  contracts  between  indi\  iduaK  are  enforced. 
then  it  must  be  conced(>d  that  I  lie  cost  of  removal  \\a>  propeily  charged 


20 

to  the  treaty  fund.  However,  after  this  treaty  had  been  signed,  but 
before  its  ratification,  a  controversy^  arose  as  to  whether  the  provisions 
of  the  treaty  obligated  the  United  States  to  pay  the  cost  of  removal, 
the  Cherokee  people  insisting  that  the  United  States  were  so  bound; 
and  hence  supplementary  articles  were  entered  into,  which,  so  far  as 
material  to  this  case,  are  as  follows: 

"Article  2.  Whereas  the  Cherokee  people  have  supposed  that  the 
sum  of  live  millions  of  dollars,  tixed  b}"  the  Senate  in  their  resolution 
of  —  day  of  March,  1835,  as  the  value  of  the  Cherokee  lands  and  pos- 
sessions east  of  the  Mississippi  River,  was  not  intended  to  include  the 
amount  which  may  be  required  to  remove  them,  nor  the  value  of  cer- 
tain claims  which  many  of  their  people  had  against  citizens  of  the 
United  States,  which  suggestion  has  been  confirmed  b}-  the  opinion 
expressed  to  the  War  Department  by  some  of  the  Senators  who  voted 
upon  the  question,  and  whereas  the  President  is  willing  that  this  sub- 
ject should  be  referred  to  the  Senate  for  their  consideration,  and  if  it 
was  not  intended  by  the  Senate  that  the  above-mentioned  sum  of  live 
millions  of  dollars  should  iu'^'kide  the  objects  herein  specified,  that  in 
that  case  such  further  provision  should  be  made  therefor  as  might 
appear  to  the  Senate  to  be  just. 

''Article  3.  It  is  therefore  agreed  that  the  sum  of  six  hundred 
thousand  dollars  shall  be,  and  the  same  is  hereby,  allowed  to  the 
Cherokee  people,  to  include  the  expense  of  their  removal,  and  all 
claims  of  everv  nature  and  description  against  the  Government  of  the 
United  States  not  herein  otherwise  expressly  provided  for,  and  to  be 
in  lieu  of  the  said  reservations  and  preemptions  and  of  the  sum  of 
three  hundred  thousand  dollars  for  spoliations  described  in  the  first 
article  of  the  above-mentioned  treaty.  This  sum  of  six  hundred 
thousand  dollars  shall  be  applied  and  distributed  agreeably  to  the  pro- 
visions of  the  said  treaty,  and  an}"  surplus  which  may  remain  after 
removal  and  payment  of  the  claims  so  ascertained  shall  be  turned  over 
and  belong  to  the  education  fund. 

""But  it  is  expressly  understood  that  the  subject  of  this  article  is 
merely  referred  hereby  to  the  consideration  of  the  Senate,  and  if  they 
shall  approve  the  same  then  thi.s  supplement  shall  remain  part  of  the 
treat  V.'' 

The  Senate  agreed  to  the  supplementary  articles  and  the  treaty  as 
thus  supplemented  was  ratified  and  subsequently  promulgated.  Thus 
the  supposition  of  the  Cherokee  people  that  the  United  States  were  to 
bear  the  cost  of  removal  was  conceded  by  the  Senate  (which  had  tixed 
the  value  of  their  lands  and  possessions  at  $5,000,000)  to  be  well 
founded,  for  upon  the  basis  of  the  cost  of  removal,  as  stated  in  article 
8,  the  sum  agreed  upon  was  thought  to  be  sufficient,  and  if  it  had  been, 
the  controversy  in  that  regard  would  have  ended  there.  The  allow- 
ance of  $600,000  was  not  in  the  nature  of  a  gratuity,  but  was  in  fur- 
therance of  a  right  which  the  Senate  conceded. 

The  grounds  for  allowing  the  sum  of  $600,000.  as  recited  in  the  second 
supplementary  article,  were  that  the  Cherokee  people  supposed  that  the 
sum  of  $5,000,000  so  fixed  by  the  Senate  as  the  value  of  their  lands  and 
possessions  "was  not  intended  to  include  the  amount  which  maybe 
required  to  remove  them."  and  in  the  third  supplementary  article  it  was 
"therefore  agreed  that  the  sum  of  six  hundred  thousand  dollars  shall 
be,  and  the  same  is  hereby,  allowed  to  the  Cherokee  people  to  include 
the  expense  of  their  removal"  and  certain  other  claims  there  stated. 


21 

And  it  was  therein  expressly  understood  that  if  >aid  articU'  shouifl  he 
approved  1>v  the  Senate,  "then  thi>  >ui)})h'inent  >hall  remain  part  of 
tlie  treaty." 

Inasmuch,  therefore,  as  the  basis  of  tliat  alh)\vance  was  the  belief  of 
the  Cherokee  people  that  the  >^.5.(I()(I.(khi  fixed  by  the  Senate  as  the 
value  of  their  lands  and  possessions,  ""was  not  intended  to  inelude  the 
amount  which  may  be  required  to  remove  them,  etc.,"*  T  am  of  the 
opinion  that  the  supplementary  arti(des  necessarily  operated  to  modify 
article  15  by  eliminatiiiiJ- therefrom  the  word  "removal."  thereby  har- 
monizing- that  article  with  article  S.  Certain  it  is  that  when  the  Senate 
ratified  the  supplementary  articles  allowing  the  sum  of  >>60'»,(»00  which 
had  i)een  estimated  as  the  amount  necessary  for  the  purpose  stated,  the 
practical  eti'ect  was  to  eliminate  from  article  15  the  word  "removal." 
and  such.  I  believe,  was  the  intention  of  the  parties  from  the  language 
which  they  employed. 

In  the  case  of  C'JieroJice  ycti'ni  v.  (jrory/a  (5  Pet..  1.  15)  the  t-ourt, 
b}-  Chief  Justice  Marshall,  some  foui'  years  Itefore  the  treaty  of  1S35. 
in  speaking  of  the  controversy  between  the  Cherokee  Nation  and  the 
State  of  Georgia,  said: 

"If  courts  were  permitted  to  indulge  their  sympathies,  a  case 
better  calculated  to  excite  them  can  scarcely  be  imagined.  A  people 
once  numerous,  powerful,  antl  truly  independent,  found  h\  our  ances- 
tors in  the  quiet  and  uncontrolled  possession  of  an  ample  domain, 
gradually  sinking  beneath  our  superior  policy,  our  arts,  and  our  arms, 
have  yielded  their  lands  by  successive  treaties,  each  of  whicli  contains 
a  solemn  guarantee  of  the  residue,  until  they  retain  no  more  of  their 
formerly  extensive  territory  than  is  deemed  necessary  to  their  comfort- 
able subsistence.  To  preserve  this  remnant  the  present  application 
is  made." 

And  further  along  in  the  same  opinion,  in  referring  tv.  the  tribes 
which  reside  within  the  acknowledged  boundaries  of  the  United  States, 
it  is  said: 

"They  may  more  correctly,  perhaps,  be  denominated  domestic 
dependent  nations.  They  occupy  a  territory  to  which  we  as.sert  a  title 
independent  of  their  will,  which  nuist  take  eHect  in  point  of  posses- 
sion when  their  right  of  possession  ceases.  Meanwhile  they  are  in  a 
state  of  pupilage.  Their  relation  to  the  United  States  resenil)les  that 
of  a  ward  to  his  guardian. 

"They  look  to  our  Government  for  protection,  rely  u})on  its  kind- 
ness and  its  power,  appeal  to  it  for  ridief  to  their  wants,  and  address 
the  President  as  their  great  father." 

In  the  later  case  of  Wni;;sf,r  v.  (,\inyni  (»;  Pet..  515.  :>s-l),  Mr.  dus- 
tic<'  ^^'ashington,  in  a  concurring  o})inion.  said: 

"The  language  used  in  treaties  with  the  Indians  should  nexcr  be 
construed  to  their  prejudice.  If  words  ]>(>  made  use  of  which  are  sus- 
ceptil)le  of  a  more  extended  meaning  than  their  ])lain  import,  as  con- 
nected with  the  tenor  of  tlie  treaty,  they  shoidd  be  considered  as  used 
only  in  the  hitter  sense." 

And  such  has  been  the  holding  of  our  courts  in  dealing  with  the 
Indian  ti'ibes  ever  since.  And  especially  should  this  rnh^  ])revail 
where   the   Indians   sign   a    tivnty  by  mark,  a-^  thev  did  th<>  treaty  of 


22 

1835,  and  when  the  terms  of  the  treaty  were  made  known  to  them  only 
by  the  oral  translation  of  an  interpreter. 

Notwithstanding-  the  Indians  were  required  by  the  provisions  of 
article  IH  of  that  treat}-  to  remove  within  two  years,  only  a  small 
minority  migrated  prior  to  1837-38.  But  the  expense  of  the  removal 
and  subsistence  of  that  minority,  together  with  the  other  expenditures 
chargeable  thereto,  nearly  exhausted  the  $600,000  allowed  bv  the  third 
supplementary  article,  so  that  it  became  necessary  to  make  a  further 
appropriation  to  defray  the  expenses  of  removal  and  subsistence  of 
those  thereafter  migrating.  The  expense  of  such  removal  and  sub- 
sistence Avas  estimated  by  the  Secretary  of  War.  and  thereafter  the 
Congress,  by  the  act  of  June  12,  1838,  appropriated  the  sum  so  esti- 
mated as  ""in  full  of  all  objects  in  third  article  of  supplementary  arti- 
cles of  treaty  of  1835  with  the  Cherokees;"'  and  in  the  same  paragraph 
it  was  recited  that  '*  No  part  of  said  money  shall  be  deducted  from  the 
five  million  dollars  stipulated  to  be  paid  to  said  tribe  by  said  treaty.'" 
If  not  to  be  so  deducted,  then  it  certain!}-  follows  that  the  United 
States  were  to  pay  the  cost  of  such  removal  and  subsistence ;  not  a 
part  of  it,  but  the  whole  of  it. 

Notwithstanding  the  provision  thus  made  the  Indians  were  still 
opposed  to  removal,  but  when  confronted  with  the  militar}'  forces 
under  General  Scott,  they  finally  yielded  and  an  arrangement  was 
entered  into  whereby  they  w-ere  nearly  all  removed  to  the  Indian  Ter- 
ritor}^  by  the  fall  of  1838.  The  cost  of  this  removal  and  subsistence 
largely  exceeded  $1,000,000,  and  of  the  sum  paid  bv  the  United  States 
$1,111,284.70  was  charged  to  the  treaty  fund;  hence  the  cause  of  com- 
plaint. 

Soon  after  their  removal  troul)le  arose  between  them  and  the  West- 
ern Cherokees.  as  well  as  those  Cherokees  who  had  been  signatory 
parties  to  the  treaty  of  1835  and  had  migrated  thither  prior  to  1838. 
The  Eastern  Cherokees  were  by  far  the  most  numerous,  and  though 
they  repudiated  the  treaty  of  1835  and  charged  that  those  who  had 
entered  into  it  had  done  so  through  corrupt  motives,  still  they  sought 
g'overnmental  control  of  the  nation,  which  was  resisted  by  the  West- 
ern Cherokees,  claiming  that  as  the  Eastern  Cherokees  had  come  into 
their  territory  without  their  consent  and  without  payment  for  any 
portion  of  the  lands  they  should  be  subject  to  the  rule  of  the  Western 
Cherokees.  But  the  Eastern  Cherokees  refused  to  be  controlled  by 
the  minorit}-.  The  result  was  that  trouble  arose  and  serious  conse- 
quences were  anticipated,  if  something  was  not  speedily  done  to  allay 
the  ill  feeling. 

In  1838,  in  national  convention  assembled,  the  people  comprising 
the  eastern  and  western  Cherokee  nations  were,  by  mutual  agreement, 
united  into  one  liody  politic  under  the  style  and  title  of  the  Cherokee 
Nation,  and  in  that  name  it  was  agreed  that  all  rights  and  titles  to 
Cherokee  public  lands  east  or  west  of  the  Mississippi  River,  together 
with  all  of  their  interests  which  may  have  vested  in  either  branch  of 
the  Cherokee  family,  whether  inherited  or  derived  from  any  other 
source,  should  vest  unimpaired  in  the  Cherokee  Nation. 

Soon  thereafter  the  reunited  Cherokees  adopted  a  constitution,  declar- 
ing that  the  two  branches  had  become  reunited  and  that  ""the  lands  of 
the  Cherokee  Nation  should  remain  common  property."" 

Such  declared  union,  however,  did  not  have  the  effect  of  allaying 
the  difficulties  between  the  two  factions.     Extreme  measures  were 


'23 

being  resorted  tt)  by  l)oth  ftietions  to  accomplish  their  ill-conceived 
purposes,  and  at  the  same  time  the  Eastern  Cherokees  were  clainiino- 
that  the  expense  of  their  removal  and  subsistence  should  be  l)Oi'ne  l>v 
the  Ignited  States. 

These  ditlerences.  l)orderinLi'  <>'>  bloodsiied  as  between  the  two  fac- 
tions, and  the  increasino'  hostility  of  the  Eastern  Cherokees  toward  the 
United  States  for  charging  them  with  the  cost  of  removal  and.sul)sist- 
ence,  led  to  the  treaty  of  ISlO  (9  Stats.  L.,  871).  The  preaml)le  to  that 
treaty  recites  that  the  purpose  of  the  treaty  was  to  etiect  a  tinal  and 
amicable  settlement  of  the  claims  in  controversy  between  themselves 
and  between  them  and  the  I  iiited  States;  and  to  that  end  it  was  in  sub- 
stance agreed  that  the  lands  occu}iied  by  the  Cherokee  Nation  should  l)e 
secured  to  the  whole  peoi)le  and  that  the  Ignited  States  should  issue  to 
them  a  patent  for  said  lands;  a  general  amnesty  was  declared  in  respect 
to  all  difficulties  and  disputes;  that  tlie  Cherokees  should  l)e  rt'imbursed 
for  all  claims  made  against  them  by  the  United  States  and  deducted 
from  the  §5,O(»O,()O0  treaty  fund;  that  the  Western  Cherokees  should 
be  reimbursed  for  the  lands  ceded  by  them  by  the  treaty  of  ls:>s. 
out  of  the  residuum  of  the  sums  arising  out  of  the  treaty  of  188r). 
That  is  to  say,  from  the  §5.B()U.00o  granted  by  the  treaty  of  ls;35 
there  should  be  deducted  the  investments  and  expenditures  stipulated 
in  article  15  of  ^aid  treaty,  and  out  of  the  residuum  there  should  1)e 
paid  to  the  Western  Ciierokees  a  sum  equal  to  one-third,  to  be  dis- 
trilnited  to  them  p'''  cu/>'ta,  and  that  in  arriving  at  that  residuum 
there  should  be  charged  for  removal  only  ^i^O  j>er  capita  and  for  sub- 
sistence ^33.33  2"^>'  ciipiio-,  as  provided  by  article  8  of  the  treats  of 
1835.  By  article  9  the  United  States  agreed  to  make  a  *'  fair  and  just 
settlement  of  all  moneys  due  the  Cherokees  and  subject  to  the  y^c/' 
capita  division  under  the  treaty  of  2yth  December.  1835.  which  said 
settlement  shall  exhibit  all  money  properly  expended  under  said  treaty, 
and  shall  em]»race  all  sums  paid  for  improvements,  ferries,  spoliations, 
removal,  and  subsistence,  and  connuutation  therefor."  By  article  U, 
in  respect  to  the  cost  of  removal  and  sul)sistence  of  the  Eastern  Chero- 
kees under  the  treaty  of  1835,  it  was  agreed  that  the  (piestions  sjjould 
be  submitted  to  the  Senate,  by  wiiose  decision  they  agreed  to  abide. 

In  respect  to  the  cost  of  sul)sistence  the  Senate  decided  that  the 
United  States  should  bear  the  expense,  and  there  was  accordingly 
restored  to  the  treaty  fund  the  sum  of  S181>,422.TG,  but  the  provision 
requiring  the  United  States  to  pay  the  cost  of  removal  was  rejected 
by  the  Senate.  The  treaty  as  thus  modified  and  ratified  was  acquiesced 
in  by  the  Indians.  But  tlie  delay  of  the  (Tovernment  in  causing  a  fair 
and  just  settlement  to  be  made  of  all  moneys  due  the  Indians  under 
the  treaty  of  1835,  which  by  the  treaty  of  184H  the  Government  had 
agreed  to  make,  caused  dissatisfaction  among  the  Indians,  and  they 
petitioned  Congress  to  carry  out  the  ])rovisions  of  the  trcnity. 

The  account  was  finally  stated  l)y  the  Connnissioner  of  Indian 
Atiairs  and  on  the  l)asis  of  that  report  the  Congress  ])asse(l  a  joint  res- 
olution (9  Stat.  L..  339)  authoi'izing  the  accounting  olKcers  of  the 
Treasury  to  make  a  just  and  fair  sc^ttlement  of  th(^  claims  of  the 
Cherokee,  according  to  the  priiici]iles  of  the  treaty  of  lS4t'>.  antl  to 
make  their  report  thereof  at  tln^  next  session  of  Congri^ss.  which  was 
done,  but  no  action  was  taken  by  Congress  thereon.  LattM'.  howe\<'i'. 
by  the  act  of  February  iJT,  1851  (i»  Stat.  L.,  573),  Congress  appropri- 
ated the  sum  of  $7:^4,H03.37,  with  interest  thereon  at  the  rate  of  5  per 


24 

cent  per  annum  from  June  12.  183S,   until  April    1,   1851.     In   the 
paraoraph  making-  the  appropriation  there  was  added  this  proviso: 

'^ Proi'ldtd^  h<nrerri\  That  the  sum  now  appropriated  shall  be  in  full 
satisfaction  and  a  final  settlement  of  all  claims  and  demands  whatso- 
ever of  the  Cherokee  Nation  against  the  United  States,  under  any 
ti-eaty  heretofore  made  with  the  Cherokees.  And  the  said  Cherokee 
Nation  shall,  on  the  payment  of  said  sum  of  money,  execute  and  deliver 
to  the  United  States  a  full  and  final  discharge  for  all  claims  and 
demands  whatsoever  on  the  United  States,  except  for  such  annuities 
in  money  or  specific  articles  of  property  as  the  United  States  mav  be 
bound  by  any  treaty  to  pay  to  said  Cherokee  Nation;  and  except,  also, 
such  moneys  and  lands,  if  any.  as  the  United  States  may  hold  in  trust 
for  said  Cherokees:  And jn'ovided^  further.  That  the  money  appropri- 
ated in  this  item  shall  be  paid  in  strict  conformity  with  the  treaty  with 
said  Indians  of  sixth  August,  eighteen  hundred  and  forty-six." 

In  1852,  in  conformity  with  the  provision  authorizing  settlement  to 
be  made,  the  sum  so  appropriated,  together  with  the  further  sum 
of  §189,-J:22.76  theretofore  allowed  for  subsistence,  making  in  all 
$912,026:13,  was — though  the  Cherokee  Nation  entered  its  protest  to 
the  settlement  on  the  basis  proposed — paid  to  the  Cherokees,  for  which 
a  receipt  was  executed  in  full  as  provided  in  the  act.  Thus  the  long-^ 
a.nd  persistent  controversy  between  the  Cherokee  Nation  and  the  United 
States  was.  notwithstanding  said  protest,  supposed  to  be  adjusted  and 
settled  as  provided  l)v  the  act. 

If  the  matter  had  rested  there  the  controversy  lietween  them  would 
have  been  at  an  end,  notwithstanding  the  protest  of  the  Cherokee 
Nation.  But  on  December  19,  1891,  an  agreement  was  entered  into 
between  the  (Tovernment  and  the  Cherokee  Nation,  by  article  1  of 
which  the  Cherokee  Nation  agreed  to  cede  to  the  United  States 
8, 111:. 682. 9 1  acres  known  as  the  Cherokee  Outlet:  and  by  article  2  it 
was  agreed  on  behalf  of  the  United  States  that  for  and  in  considera- 
tion of  said  cession  the  United  States  would  (1)  remove  from  the  lim- 
its of  the  Cherokee  Nation  certain  trespassers:  (2)  a  certain  article  of 
the  treaty  of  1S66  should  be  held  for  naught:  (3)  the  judicial  tribunals 
of  the  Cherokee  Nation  should  have  exclusive  jurisdiction  in  certain 
cases;  (4)  "The  United  States  shall,  without  delay,  render  to  the 
Cherokee  Nation,  through  any  agent  appointed  by  authority  of 
the  national  council,  a  complete  account  of  moneys  due  the  Chero- 
kee Nation  under  anv  of  the  treaties  ratified  in  the  vears  1817, 
1819.  1825,  1828.  1833,  1835-36,  1816,  1866,  and  1868,  aiid  any  laws 
passed  by  the  Congress  of  the  United  States  for  the  purpose  of 
carrying  such  treaties,  or  any  of  them,  into  ettect:  and  upon  such 
accounting  should  the  Cherokee  Nation,  by  its  national  council, 
conclude  and  determine  that  such  accounting  is  incorrect  or  unjust, 
then  the  Cherokee  Nation  shall  have  the  right  within  twelve  months 
to  enter  suit  against  the  United  States,  in  the  Court  of  Claims,  with 
the  right  of  appeal  to  the  Supreme  Court  of  the. United  States  by 
either  party,  for  any  alleged  or  declared  amounts  of  money  promised 
but  withheld  by  the  United  States  from  the  Cherokee  Nation,  under 
any  of  said  treaties  or  laws  which  may  be  claimed  to  be  omitted  from, 
or  unfairly  or  unjustly  or  illeoally  adjusted  in  said  accounting:  and 
the  Congress  of  the  United  States  shall,  at  its  next  session,  after  such 
case  shall  be  finally  decided  and  certified  to  Congress  according  to  law,, 


25 

appropriate  a  sufficient  sum  of  money  to  pay  such  judgment  to  the 
Cherokee  Nation,  should  judgment  l)e  rendered  in  her  favor,  or  if  it 
shall  be  found  upon  such  accounting  that  any  sum  of  money  has  been 
80  withheld,  the  amount  shall  be  duly  appropriated  b\-  Congress, 
payable  to  the  Cherokee  Nation,  upon  the  order  of  its  national  council: 
said  appropriation  to  l)e  made  l)y  Congress,  if  then  in  session,  and  if 
not.  then  at  the  next  session  immediate!}'  following  such  accounting:" 
(5)  that  certain  citizens  of  the  Cherokee  Nation  should  have  the  right 
to  select  lands  as  homesteads  under  certain  conditions,  and  (0)  that  the 
United  States  should  pay  for  said  lands  the  sum  of  $8,30(>,(»OU. 

The  other  provisions  of  the  treaty  are  not  material  to  this  case,  but 
in  transmitting  the  treaty  the  conunissioners  on  the  part  of  the  Cnited 
States  reported  to  the  President  by  way  of  explanation — dcnil^tiess  to 
induce  the  ratification  of  the  agreem('nt--that  in  the  reliiKpiishment  of 
the  title  to  the  land  it  was  made  a  condition  precedent  that  the  Ignited 
States  should  render  to  the  Cherokee  Nation  a  complete  account  of 
moneys  due  to  the  nation  under  treaties  as  stated  in  the  fourth  sul)di- 
vision  of  article  2  above  quoted,  and  this,  they  sav,  ''because  the 
Cherokees  are  compelled  to  accept  the  construction  of  the  treaties 
made  by  the  P^xecutive  and  administrative  branches  of  the  Govern- 
ment,'" and  that  ''Whatever  that  construction  is,  the  Indians  must 
abide  by  it,"  there  being  "'no  appeal  except  to  Congress."  The  com- 
missioners also  reported  that  the  Indians  "'claimed  that  upon  a  just 
accounting,  upon  a  pi'oper  construction  of  the  treaties  named,  a  large 
sum  of  money,  principal  and  interest,  will  l)e  found  due  them:"  and 
that  as  the  Government  had  kept  the  books  and  construed  the  treaties, 
no  harm  could  come  from  restating  the  account,  for  if  not  theretofore 
correctly  stated,  "no  possible  reason  can  exist  why  the  error  shoidd 
not  be  corrected."  (Senate  Ex.  Doc.  56,  62d  Cong.,  1st  sess.^  pp.  11 
and  12.) 

The  agreement  so  entered  into  was  approved  by  the  (Jherokee 
national  council  Januarv  4.  1892,  and  ratified  bv  the  Congress  bv  the 
act  of  :\Iarch  8,  1893  (27  Stats.  L.,  tilo).  By  the  same  act  the  siim  of 
$5,0(10  was  appropriated  "'to  enable  the  Conuuissioner  of  Indian  Atfairs. 
under  the  direction  of  the  Secretary  of  the  Interior,  to  employ  such 
expert  person  or  persons  to  properly  render  a  complete  account  to  the 
Cherokee  Nation  of  moneys  due  said  nation,  as  resiuired  in  the  fourth 
subdivision  of  article  2  of  said  agreement,"  set  out  al)ove. 

Therefore,  as  part  consideration  and  inducement  for  the  sale  of  the 
land,  the  United  States  agreed  that  they  would  without  delay  render 
"a  complete  account  of  moneys  due  the  Cherokee  Nation;"  and.  in 
furtherance  of  the  agreement  and  the  appropriation  therefor,  such 
experts  were  appointed  and  an  account  was  rendered,  which  was 
accepted  In'  the  Cherokee  Nation,  and  its  right  to  sue  in  this  court  was 
therein'  waived. 

The  Cherokees  insisted  upon  the  ])aynient  of  the  amount  found  due. 
but  a  (luestion  arose  as  towhethcn*  the  exi)erts  had  not  exceeded  their 
authority  in  so  construing  the  treaties  as  to  rendei-  the  Unite<l  States 
liable  for  the  cost  of  the  removal  and  th(Mi  stating  the  account  acct)rd- 
ingly.  It  was  contended  then,  and  is  now,  tluit  no  (juestion  of  law 
was  submitted  to  them  for  decision:  that  they  were  merely  to  state  the 
account  as  it  existed,  and  this,  it  seems  to  me.  is  the  correct  view.  The 
experts,  however,  in  the  account  respecting  the  cost  of  removal,  say: 
"The  cost  of  removal  and  subsistence  prove  to   be  very  nuich  larger 


26 

than  was  expected  and  provided  for  by  the  appropriation.  The  excess, 
cost  of  subsistence  over  the  amount  appropriated  has  been  refunded 
to  the  Cherokee  Nation;  but  upon  the  assumption  that  the  United 
States  was  (were)  to  pav  the  expense  of  removal  there  is  due  the 
Cherokee  fund  the  sum  of  $1,111,284.70." 

That  amount,  it  will  be  noted,  is  stated  as  due  upon  tlir  a^<Huin))t'ion 
of  the  liability  of  the  United  States  to  pay  the  cost  of  removal.  That 
liability  the  Cong-ress  desired  determined,  and  for  that  purpose,  in  the 
act  of  July  1,  1902  (32  Stat.  L.,  717),  making  provision  for  the  allot- 
ment of  land  to  the  Cherokee  Nation  and  for  other  purposes,  section 
68  was  incorporated  in  these  words: 

''  Sec.  68.  Jurisdiction  is  hereby  conferred  upon  the  Court  of  Claims 
to  examine,  consider,  and  adjudicate,  with  a  right  of  appeal  to  the 
Supreme  Court  of  the  United  States  by  any  party  in  interest  feeling 
aggrieved  at  the  decision  of  the  Court  of  Claims,  any  claim  which  the 
Cherokee  tribe,  or  any  band  thereof,  arising  under  treat}"  stipula- 
tions, may  have  against  the  United  States,  upon  which  suit  shall  be 
instituted  within  two  years  after  the  approval  of  this  act:  and  also 
to  examine,  consider,  and  adjudicate  an}"  claim  which  the  United 
States  may  have  against  said  tribe,  or  any  band  thereof.  The  insti- 
tution, prosecution,  or  defense,  as  the  case  may  be,  on  the  part  of  the 
tribe  or  any  band,  of  anv  such  suit,  shall  l)e  through  attorneys  em- 
ployed and  to  be  compensated  in  the  manner  prescribed  in  sections 
twenty-one  hundred  and  three  and  twenty-one  hundred  and  six, 
l)oth  inclusive,  of  the  Revised  Statutes  of  the  United  States,  the  tribe 
acting  through  its  principal  chief  in  the  employment  of  such  attor- 
neys, and  the  band  acting  through  a  committee  recognized  by  the 
Secretar}"  of  the  Interior.  The  Court  of  Claims  shall  have  full 
authority,  by  proper  orders  and  process,  to  make  parties  to  any  such 
suit  all  persons  whose  presence  in  the  litigation  it  may  deem  neces- 
sary or  proper  to  the  final  determination  of  the  matter  in  controversv, 
and  any  such  suit  shall,  on  motion  of  either  party,  be  advanced  on  the 
docket  of  either  of  said  courts  and  be  determined  at  the  earliest 
practicable  time."" 

Under  that  act  the  Cherokee  Nation  filed  the  petition  herein  claim- 
ing the  several  amounts  stated  in  the  account  so  rendered  under  the 
direction  of  the  Secretary  of  the  Interior  as  an  award,  and  asked  inter- 
est thereon  at  5  per  cent  per  annum  from  June  12,  1838.  But 
douV)ts  were  entertained  as  to  whether  under  that  act  the  Eastern 
Cherokee  could  })e  made  parties  to  the  action,  and  so  by  the  act  of 
March  3.  1903  (32  Stat.  L.,  99<)),  making  appropriation  for  the  Indian 
Department,  section  68  was  amended  as  follows  : 

'■'  Section  sixty-eight  of  the  act  of  Congress  entitled  *An  act  to  pro- 
vide for  the  allotment  of  lands  of  the  Cherokee  Nation,  for  the  dis- 
position of  town  sites  therein,  and  for  other  purposes,'  approved 
-luly  Hrst.  nineteen  hundred  and  two,  shall  be  so  construed  as  to  give 
the  Eastern  Cherokees,  so  called,  including  those  in  the  Cherokee 
Nation  and  those  who  remained  east  of  the  Slisssissippi  River,  acting- 
together  or  as  two  bodies,  as  they  may  be  advised,  the  status  of  a 
band  or  bands,  as  the  case  may  be,  for  all  the  purposes  of  said  section: 
ProvhJed,  That  the  prosecution  of  such  suit  on  the  part  of  the  Eastern 
Cherokees  shall  be  through  attorneys  employed  b}-  their  proper 
authorities,  their  compensation  for  expenses  and  services  rendered  in 


27 

relation  to  such  claim  to  be  tixed  hy  the  Court  of  Claims  upon  the 
termination  of  such  suit;  and  said  section  shall  be  further  so  construed 
as  to  require  that  ))oth  the  Cherokee  Mation  and  said  P^astern  Chero- 
kees.  so  called,  shall  be  made  parties  to  any  suit  which  may  be  insti- 
tuted aoainst  the  United  States  under  said  section  upon  the  claim 
mentioned  in  House  of  liepresentati\es  Elxecutive  Document  Num- 
bered Three  hundred  and  nine  of  the  second  session  of  the  Fifty- 
seventh  Congress:  and  if  said  claim  shall  be  sustained  in  whole  or  in 
part  the  Court  of  Claims.  sul)ject  to  the  rioht  of  aj)peal  nam<'d  in 
said  section,  shall  be  authorized  to  render  a  judgment  in  favor  of  the 
rightful  claimant,  and  also  to  determine  as  between  the  ditlerent 
claimants,  to  whom  the  iudgment  so  rendered.  e(iuital)ly  belongs, 
either  wholly  or  in  part,  and  shall  be  required  to  determine  whether, 
for  the  purpose  of  participating-  in  said  claim,  the  Cherokee  Indians 
who  remained  east  of  the  Mississippi  River  constitute  a  part  of  the 
Cherokee  Nation,  or  of  the  Eastern  Cherokees,  so  called,  as  the  case 
may  be." 

Under  the  amended  section  the  Eastern  Cherokees  appeared  by 
counsel  and  tiled  their  petition,  claiming-  that  they  Avere  entitled  to  the 
amount  stated  in  the  account  so  rendered  under  the  direction  of  the 
Secretar}"  of  the  Interior  for  the  cost  of  their  removal  to  the  Indian 
Territory,  with  interest  thereon  at  5  per  centum  from  June  lii.  18oS. 
Still  another  class,  known  as  Eastern  and  Emigrant  Chei-okees.  a})peared 
by  counsel  and  riled  tlieir  petition,  in  which  they  claimed  one-fourth 
of  the  amount  stated  as  the  cost  of  removal  of  the  P^astern  Cherokees 
to  the  Indian  Territory.  Therefore,  the  Cherokee  Nation,  as  well  as 
the  Eastern  and  all  other  Cherokees  claiming-  any  interest  in  the  sub- 
ject-matter of  the  litig-ation,  appear  to  be  in  court  as  reciuired  b}-  the 
jurisdictional  act. 

The  claim  thus  referred  to  as  '•mentioned  in  H.  R.  Executive  Docu- 
ment No.  SOU  of  the  second  session  of  the  Fifty-seventh  Cong-ress.**  is. 
as  stated  in  the  resolution  of  the  House  of  Representatives.  Decem- 
ber 16,  11M)2.  as  follo\\s:  "The  award  rendered  under  the  Cherokee 
agreement  of  December  11»,  isiil.  ratiried  by  act  of  Congress  a})p roved 
March  8,  1893,*'  and  more  particularly  set  forth  in  H.  R.  Exet'uti\e 
Document  No.  1S2.  Fifty-third  Congress,  third  session,  pages  1.  3:i, 
and  the  rindings  of  fact  of  the  Court  of  Claims  of  April  2s.  181*2, 
which  latter  are  sul)stantially  the  rindings  of  fact  in  the  present  case. 

The  foregoing-  rindings  of  fact  were  made  and  rei)orted  to  C<^ngress 
in  response  to  the  resolution  of  the  United  State>  Senate  nd'cri-ing  to 
the  court  Senate  l)ill  No.  MtiM.  proxiding  for  tln^  payment  of  the  award 
of  the  Secretary  of  tlie  Interioi-  in  faxor  of  the  C'herokec^s  under  the 
provisions  of  the  act  of  Congress  of  March  o.  iMt."..  P)Ut  in  the  latter 
part  of  the  ninth  rinding,  refeiriiig  to  the  re})ort  of  the  (•xpfrl>  Shide 
and  Bender  as  to  the  amount  tluirged  to  the  treaty  fund,  the  court 
said:  '"liut  whether  said  sum  of  one  million  one  hundred  and  eleven 
thousand  two  hundred  and  cighty-t'our  dollars  and  scxenty  cents 
(^1,111.284.70)  was  or  was  not  inipi'operly  charged  lo  the  treaty  fund, 
and  Avhether  interest  should  he  allowed  thereon  are  (|Uc-tion>  of  law 
upon  which  the  court  expresses  no  o|)inion."" 

Notwithstanding- the  i-cpoi-l  of  the  (^xperts  and  the  tindiiig>  of  the 
court  were  before  th(^  Cougre--.  they  did  not  sec  lit  to  make  the 
appropriation  to  pa\'  the  amount  fouu<l  due.  hut  iii-tead  referred  the 
claim  to  the  court  for  adjudieation. 


28 

What,  then,  was  referred  to  the  court  for  adjudication?  It  is  con- 
ceded in  the  court's  opinion  that  the  amount  found  due  has  none  of 
the  elements  of  an  award  nor  of  an  account  stated,  but  that  as  the 
rendition  of  the  account  was  made  a  part  of  the  consideration  for  the 
sale  of  the  Cherokee  Outlet  it  is  binding  on  the  United  States,  and 
therefore  the  court  can  not  go  behind  the  account  so  rendered.  That 
Congress  did  not  take  that  view  of  the  account  is  evident  from 
their  passage  of  the  two  acts  conferring  upon  the  court  jurisdiction 
"to  examine,  consider,  and  adjudicate  *  *  *  any  claim  which  the 
Cherokee  tribe,  or  an}^  band  thereof,  arising  under  treaty  stipula- 
tions, ma}'^  have  against  the  United  States/'  The  agreement  of  1891, 
ratified  by  the  Congress,  respecting  the  rendition  of  an  account,  is 
that  "The  United  States  shall,  without  delay,  render  to  the  Chero- 
kee Nation  *  *  '■  a  complete  account  of  monej's  due  the  Cherokee 
Nation  under  any  of  the  treaties"  therein  referred  to,  and  if  the 
Cherokee  council  should  "determine  that  such  accounting  is  incorrect 
or  unjust,'*  the  Cherokee  Nation  should  then  have  the  right,  within 
twelve  months,  to  enter  suit  in  the  Court  of  Claims  against  the 
United  States.  This  it  did  not  do,  but  instead  accepted  the  account 
and  thereby  waived  its  right  to  sue.  But  were  the  United  States 
bound  to  accept  the  account,  based  as  it  was  upon  the  assumption  of 
their  liabilit}"  under  the  several  ti'eaties?  1  think  not,  for  the  reason 
that  the  questions  of  law^  involved  were  not  submitted  to  the  experts 
for  their  decision  by  the  appropriation  authorizing  their  appointment, 
nor  will  the  language  of  the  agreement  made  the  basis  thereof  bear 
such  construction.  The  accounting  contemplated  by  the  agreement 
and  for  which  the  experts  were  appointed  was  a  statement  of  the 
account  as  it  actually  existed  between  the  United  States  and  the 
Cherokee  Nation:  that  is  to  say,  to  properly  state  the  several  claims 
of  the  Cherokee  Nation  and  the  payments  made  thereon  by  the  United 
States.  This  they  did  not  do,  but  upon  the  (isxinnption  of  the  liability 
of  the  United  States  to  pay  the  cost  of  removal,  stated  a  different 
account  and  the  result  was  the  balance  of  ^1,111,28-1.70  in  favor  of 
the  Cherokee  Nation,  so  that  in  my  view  of  the  case  that  question 
was  left  open  by  the  experts  for  the  court  to  deal  with,  but  inasmuch 
as  the  Cherokee  Nation  accepted  the  account,  though  rendered  upon 
the  assumption  of  the  liability  of  the  United  States,  instead  of  bringing 
suit  in  the  Court  of  Claims  to  have  that  question  determined,  it  was 
left  for  the  Congress  to  deal  with,  and  hence  the  reference  of  the 
claim  to  this  court.  The  jurisdiction  of  the  court  to  determine  that 
question  is  not  controverted. 

In  my  view  of  the  case,  as  before  stated,  the  supplementary  articles 
to  the  treaty  of  1835  operated  to  modify  article  15  thereof  by  elimi- 
nating therefrom  the  word  "removal'"'  and  with  that  word  eliminated 
the  United  States  were  liable  under  the  treaty  of  1835  for  the  expense 
of  removing  the  Eastern  Cherokees  to  the  Indian  Territorv:  and  such 
was  evidently  the  view  of  Congress  by  the  act  of  June  12,  1838,  mak- 
ing appropi'iation  to  pay  the  sum  estimated  l)y  the  Secretary  of  War 
as  necessar}'  to  defray  the  expenses  of  removal  and  subsistence  herein- 
before referred  to,  in  which,  in  the  same  paragraph,  it  is  recited  that 
"No  part  of  said  money  shall  be  deducted  from  the  live  million  dollars 
stipulated  to  be  paid  to  said  tribe  by  said  treaty  "  (1835).  That  language 
seems  to  justif}^  the  views  I  have,  expressed  and  may  well  be  consid- 
ered in  its  eti'ect  as  a  legislative  construction  of  the  treatv  of  1835. 


29 

In  addition  thereto  Conoress  made  appropriations  to  pay  the  entire  cost 
of  subsisting  the  Cherokees  for  one  \ear  after  their  removal  to  the 
Indian  Territory,  notwithstanding  the  eost  thereof,  as  stated  in  article 
15  of  the  treaty  of  1835,  was  to  be  dediu-ted  from  the  treaty  fund  the 
same  as  the  cost  of  removal. 

I  therefore  reach  the  conclusion  that  the  assuujption  of  the  experts, 
that  the  Ignited  States  were  lial)le  for  the  cost  of  removal,  was  well 
founded,  and  that  the  account  rendered  by  them  upon  that  theory  is 
correct,  as  conceded  by  the  defendants. 

The  next  question  is.  To  whom  should  the  money  be  paid  '.  It  is 
conceded  that  the  C^herokee  Nation  is  entitled  to  recover  under  the 
treaty  of  1S19  and  the  ti'eaty  of  18<;(1.  and  also  certain  interest  under 
the  act  of  Congress  of  March  3.  iSlto.  the  several  sums  set  forth  in  the 
report  of  the  experts,  the  disposition  of  each  of  which  is  eorrcctly 
dealt  with  in  the  opinion  of  the  court. 

In  respect  to  the  sum  of  $l,lll,i^s-l:.70  for  the  expense  of  moving 
the  Eastern  Cherokees  to  the  Indian  Territory,  that  sum.  if  it  had  not 
been  charged  to  the  treaty  fund,  would,  under  the  })rovisions  of  artit-le 
15  of  the  treaty  of  1S35.  have  been  "equally  divided  among  all  the 
people  t)elonging  to  the  Cherokee  Nation  east,  according  to  the  census 
just  completed."  while  the  ninth  article  of  the  treaty  of  l84:t>,  after 
providing  for  deductions  for  money  properly  expended  under  tlie 
treaty  of  1835,  provides  that: 

"  The  balance  thus  found  to  be  due  shall  Ije  paid  ovei\  y>< /wv/y^/A/. 
in  e([ual  amounts,  to  all  those  individuals,  heads  of  families,  or  their 
legal  representatives,  entitled  to  receive  the  same  under  the  ti'eaty  of 
ls35  and  the  supplement  of  183<).  being  all  those  Cherokees  residing 
east  at  the  date  of  said  treaty  and  the  supplement  thereto."* 

Hence  whatever  sums  were  properly  chargeal)le  under  the  treaty  of 
1835  were  also  chargeable  under  the  ninth  article  of  the  treaty  of  ISKi, 
and  the  balance  remaining  was  to  be  eipially  divided  as  above  stated; 
while  in  respect  to  those  Cherokees  I'emaining  east  it  was  expressly 
provided  by  article  !(•  of  the  treaty  of  18-16 — though  they  were  not 
parties  thereto — that  nothing  in  said  treaty  "shall  i)e  so  construed  as 
in  any  manner  to  take  away  or  abridge  any  rights  or  claims  which  the 
Cherokees  now  residing  in  States  east  of  the  ^Iississippi  Kiver  had.  or 
may  have,  under  the  treaty  of  1^35  and  the  supplement  thereto." 

But  by  article  4  of  the  treaty  of  184().  it  is  provided,  in  respect  of 
the  AVestern  Cherokees.  that  in  eonsideration  of  the  cession  by  them 
of  their  interest  in  the  lands  east  and  west  of  the  Mississippi  Kiver. 
including  the  S.OOO.OOo  acres  ceded  by  the  treaty  of  1n35 — all  of 
which  was  to  remain  the  common  property  of  the  whole  Chei'okee 
people — after  all  the  investujents  and  expenditures  properly  (•harg(>able 
to  the  |5,<)00.<M»0  granted  liy  the  ti-eaty  of  1S35  had  been  deducted, 
thata  sum  equal  toone-third  part  of  said  residuum  should  Itedistributed 
per  cd pita  to  Q'A.q\\  individual  of  the  ^Vest(M■n  Cherokees.  and  that  in 
estimating  the  expense  of  remo\"al  and  subsist(Mice  of  the  Kastern 
Cherokees  the  sum  stipulated  as  conmmtation  therefor  in  article  s  of 
the  treaty  of  1835  be  adopted. 

Inasnuu'h,  therefore,  as  the  cost  of  i-emo\al.  >^L  1 1  Li'^l.T'i.  was 
charged  to  the  treaty  fund  in  I  he  settlement  thus  made,  (he  Cherokees. 
l)oth  east  Jind  west.  recei\ed  Ie>s  than  they  would  have  reeei\-ed  but 
for  such  deduction.  Hence,  when  that  sum  is  restored  to  the  treaty 
fund  the  whole  Cherokee  people  will  be  entitled  to  share  in  the  sum  so 


30 

restored  the  same  as  they  would  have  been  at  the  time  of  the  treat}" 
of  184:<),  phi.s  whatever  interest  ma}'  now  be  added  thereto. 

The  sum  thus  restored  becomes  a  trust  fund  in  the  hands  of  the 
United  States,  not  for  the  purpose  of  investment  nor  to  be  held  by 
them,  but  for  the  sole  purpose  of  distributing  the  same  to  the  Chero- 
kee people  as  provided  by  the  treaties  of  1835  and  1846. 

By  Revised  Statutes,  section  1U91,  this  court  is  inhibited  from  allow- 
ing interest  on  an}'  claim  ''unless  upon  a  contract  expressly  stipulat- 
ing for  the  payment  of  interest.'"  There  is  no  provision  in  either  of 
the  treaties  of  1835  or  1846  respecting  the  payment  of  interest,  except 
on  the  specific  sums  to  be  invested  as  provided  by  the  treaty  of  1835, 
and  the  court  must  therefore  look  elsewhere  for  authority,  if  interest 
is  to  be  allowed. 

No  interest  can  be  allowed  on  the  sum  under  Revised  Statutes, 
section  2<»H6,  as  the  same  was  not  received  under  a  treaty  containing  a 
stipulation  for  the  payment  of  annual  interest,  but  on  the  contrary  was 
to  be  expended  in  defraying  tiie  cost  of  removal,  etc.  Nor  can  interest 
be  allowed  under  Revised  Statutes,  section  2108,  as  the  money  is  not 
going  to  incompetent  or  orphan  Indians.  Nor  can  interest  be  allowed 
under  Revised  Statutes,  section  3659,  as  no  interest  has  accrued 
thereon  allowable  by  this  court,  nor  has  the  same  been  invested  in 
stocks  of  the  United  States  or  other  interest-bearing  securities. 

As  the  act  of  February  27,  1851,  mpra.,  under  which  the  settlement 
of  1852  was  made,  authorized  the  payment  of  interest  from  June  12, 
1838,  to  April  1,  1851,  on  the  sum  appropriated,  it  may  fairly  be 
assumed  that  if  the  sum  of  Si. 111,284. TO  now  in  controversy  had  then 
been  settled,  interest  would  have  been  paid  thereon  as  provided  by  the 
act.  But  that  act  has  performed  its  office  and  the  court  can  not  look 
thereto  for  the  payment  of  interest,  even  for  the  period  stated,  so  that 
1  have  grave  doubts  as  to  whether  there  is  any  provision  of  law 
authorizing  the  court  to  allow  interest  on  said  sum,  however  much  I 
may  think  it  ought  to  be  allowed:  but  for  the  purposes  of  this  case 
I  will  assume  the  allowance  of  interest  and  the  correctness  of  the 
distribution,  as  set  forth  in  the  court's  opinion. 

Wright,  J.,  dissenting: 

I  do  not  concur  in  the  opinion  nor  the  conclusion  of  the  majority  of 
the  court  concerning  the  expense  of  the  removal  of  the  Indians.  It  is 
not  strictly  accurate  to  say  that  the  $1,111,284.70  of  the  Slade  and 
Bender  account  is  part  consideration  for  the  sale  of  the  Outlet,  for 
that  item  had  no  existence  until  Shide  and  Bender  made  an  account 
that  was  never  in  the  records. 

The  stipulation  relative  to  the  existing  dispute  about  the  subject  of 
removals  was  part  of  the  agreement  for  such  sale,  and  to  that  extent 
may  be  treated  as  entering  into  the  inducement  or  consideration  for 
such  sale,  but  the  rights  of  the  parties  created  by  the  contract  could 
not  be  enlarged  nor  abridged,  without  the  consent  of  Ijoth,  by  the 
agents  of  either,  while  assuming  to  carry  out  the  provisions  of  the 
agreement. 

All  that  was  contemplated  by  the  fourth  subdivision  of  article  2  of 
the  agreement  of  December  19,  1891,  was  a  statement  of  the  account 
of  monevs  due  the  Cherokee  Nation  under  anv  of  the  treaties  ratified 
in  the  years  1817,  1819,  1825,  1828,  1833,  1835,  1836,  1846,  Xm^,  and 
1868,  and  any  laws  passed  by  the  Congress  for  the  purpose  of  carrying- 
said  treaties,  or  any  of  them,  into  efl'ect.     Upon  such  accounting  being 


31 

made  tho  Cherokeo  Nation  was  oivcii  the  right  within  twelve  months 
to  enter  .suit  in  this  court,  hot  for  any  moneys  appeai'ino-  to  be  due 
upon  the  aceountiny,  l)ut  for  any  aUeovd  or  deehired  amount  of  money 
promised  but  withheld  by  the  Cnited  States  from  tlie  Cherokee  Nation 
under  any  of  the  treaties  or  laws  which  mig-ht  be  claimed  to  l)e  omit- 
ted from  or  improperly  or  unjustly  or  illeoally  adjusted  in  said  ac- 
counting-; or.  if  it  should  l)e  found  upon  said  accounting  that  any 
sum  of  money  had  been  so  withheld,  the  amount  should  be  duly  ap})i'o- 
priated  by  Congress. 

What  manifestly  was  intended  by  the  agreement  was  that  the  l^iited 
States  was  to  state,  tirst,  the  moneys  due  to  the  Cherokee  Nation 
under  the  treaties  specitied  and  the  laws  passed  to  carr^'  them  into 
eU'ect,  and,  second,  the  disposition  in  fact  made  of  such  moneys — not 
what  ought  to  have  been  done,  but  wliat  was  done.  In  other  words, 
the  account  should  state  the  various  sums  so  appropriated,  so  that  it 
would  appear  in  a  precise  and  compact  form  how  much  money  was 
due  the  Cherokee  Nation  under  the  treaties  and  laws  mentioned  and 
the  disbursements  thereof  in  fact  made  by  the  Cnited  States. 

This  was  the  view  taken  by  the  Interior  Department,  before  Congress 
ratified  the  treaty,  in  the  report  of  the  Commissioner  of  Indian  Ati'airs, 
communicated  to  Congress,  and  upon  which  was  made  the  appropria- 
tion of  March,  1893,  of  $5,000  to  employ  such  expert  persons  to  prop- 
erly render  a  complete  account  to  the  Cherokee  Nation  of  moneys  due. 
as  required  in  the  fourth  subdivision  of  article  2  of  the  agreement. 
The  report  upon  which  the  Congress  acted  in  making  such  a]ipropria- 
tion  in  eti'ect  stated  that  it  seemed  the  intention  of  the  parties  ro  the 
agreement  that  what  was  required  was  a  detailed  statement  of  all  the 
moneys  received  and  disl)ursements  made  l)v  the  United  States  of 
the  Cherokee  funds  under  treaties  and  acts  of  Congress,  and  that  being 
true  it  would  require  the  services  of  an  expert  accountant,  with  assist- 
ants, probal)ly  twelve  months  or  more  to  review  and  copy  the  Cherokee 
accounts  and  records  I'unning  ])ack  nearly  a  century,  and  to  prepare  a 
statement  of  that  kind  it  would  require  an  appropriation  of  at  least 
$5,(Hl()  to  pay  for  the  services  of  an  expert  accountant  and  assistants, 
and  in  the  draft  of  the  bill  for  the  ratification  of  the  agreement  for 
the  purchase  of  the  Outlet  the  ai)propriation  was  provided  for  as 
recommended,  thus  proving  l)y  the  act  of  ratification  itself  that  Con- 
gress intended  to  require  in  such  accounting  only  "*  a  detailetl  state- 
ment of  all  the  moneys  recei\'ed  and  disbursements  made  by  the  L'nited 
States  of  the  Cherokee  funds  under  said  treaties  and  acts  of  Congress." 
Nothing  was  intimated  or  stated  that  the  accountants  were  authori/(Mi 
to  do  more  than  to  review  and  copy  tlie  accounts  and  records  rumiing 
back  nearly  a  century.  No  autliority  \\asgi\-en  to  change  the  accounts. 
but  to  copy  them. 

The  defendants  agreed  to  int'orm  the  Cherokee  Nation  how  nuich 
money  was  due  to  them  undei-  the  \arious  trinities  and  laws,  and  how 
much,  for  what  purpose,  and  in  w  liat  uianntM-  it  liad  been  paid  out.  t!ui> 
forming  a  basis  for  the  nation  to  come  into  this  court  and  ln'ing  suit, 
not  meridy  for  a  sum  or  balance  appearing  to  be  due  on  the  face  of 
such  account,  but  toclispute  the  account,  allege  and  declare  an  amount 
of  money  promised  and  withhelil.  or.  in  other  words,  that  the  Cnited 
States  had  diverted  or  misa|)pro])riat(Hl  an  alleged  amount,  and  ui)on 
such  allegation  this  court  was  gi\-en  jurisdiction  to  decide  and  gi\'e  its 
judgment. 

Slade  and  Bender,  the  accountants,  mistook  their  authority,  however, 


32 

and  usurped  the  jurisdiction  conferred  upon  this  court  and  decided  the 
questions  intended  for  this  court.  They  did  not  merely  state  the  facts 
of  the  account  as  the}'  existed,  but  changed  the  facts  and  undertook  to 
state  the  account  as  they  thought  it  ought  to  have  been  made.  Their 
account  was  not  the  account  of  the  defendants  but  the  account  they 
believed  the  defendants  should  have  made  instead.  The}"  substituted 
a  different  account  for  the  one  they  were  authorized  to  state. 

It  has  been  argued  that  the  Secretary  of  the  Interior  by  transmitting 
the  Slade  and  Bender  account  to  the  Cherokee  Nation  thereb}'  ratified 
and  gave  it  efi'ect.  This  can  not  be,  for  the  plain  reason  that  he  was 
not  the  agent  of  the  United  States  for  such  a  purpose.  The  only 
authority  conferred  upon  that  oflicer  was  to  employ  such  expert  person 
or  persons  to  properlv  render  a  complete  account  as  required  in  the 
fourth  subdivision  of  article  2  of  the  agreement. 

It  ought  to  require  no  argument  to  prove  that  l)eyond  a  mere  state- 
ment of  the  existence  of  the  account  as  in  fact  kept  by  the  Government,  a 
true  exhibit  thereof,  the  accounting  of  Slade  and  Bender  is  of  no  effect 
whatever.  By  their  attempt  to  enter  upon  the  jurisdiction  so  manifestly 
intended  for  this  court  they  misled  the  Cherokee  Nation,  and  thwarted 
the  intention  of  the  parties  to  obtain  an  early  adjudication  of  the  matters 
now  before  the  court.  As  soon  as  this  report  was  called  to  the  atten- 
tion of  Congress  it  was  repudiated,  and  the  matter  was  again  referred 
to  this  court  in  the  form  now  existing,  and  the  case  is  wholly  unaf- 
fected by  the  report  of  Slade  and  Bender,  except  in  so  far  as  it  exhibits 
the  true  state  of  the  account,  the  record  of  the  facts  and  acts  of  the 
Government,  as  they  actually  occurred  at  the  respective  times  of  the 
various  t ran sact i o n s . 

Bv  setting  aside  the  accounting  of  Slade  and  Bender,  as  respects  the 
charge  for  removals,  we  would  be  brought  to  a  consideration  of  the 
case  upon  its  merits,  namely,  the  liability  of  the  defendants  for  remov- 
als under  the  stipulations  of  the  treaty  of  1835.  No  subsequent  act 
of  Congress  changed  the  treaty  in  this  respect.  The  appropriations 
made  for  such  purpose  were,  in  view  of  the  provisions  of  the  treaty, 
mere  gratuities,  and  did  not  bind  the  defendants  to  assume  further  lia- 
bilities. Congress  might  do  so.  if  they  saw  tit,  but  no  legal  obligation 
was  assumed  in  that  regard.  Plaintiffs  are  now  here  claiming  under 
the  treaty  of  1835,  and  it  is  familiar  doctrine  that  they  can  not  at 
the  same  time  both  claim  under  and  repudiate  its  provisions.  That 
the  treaty  of  1835.  unchanged  as  it  is,  charged  the  expense  of  the 
removals  to  the  plaintilis  is  too  plain  for  argument,  as  will  appear 
by  reading-  it  within  its  four  corners. 

If  the  conclusion  reached  by  the  majority  of  the  court  is  to  be 
accepted  as  the  final  award  of  the  moneys  claimed  in  this  suit,  it  will 
prove  the  futility  of  accomplishing  an}'  settlement  of  disputed  matters 
1)V  the  nuitual  agreement  of  the  parties. 
'  Under  the  provisions  of  the  act  of  1851,  in  the  year  1852  $912,026.13 
was  paid  to  and  accepted  })y  the  Cherokee  Nation  with  the  express 
condition  that  the  same  should  be  in  full  satisfaction  and  in  final  settle- 
ment of  all  claims  and  demands  whatsoever  under  any  treaty  thereto- 
fore made,  with  certain  exceptions  in  which  the  present  claim  is  not 
included.  This  settlement  was  fairly  entered  into  and  acquittance 
executed  by  the  plaintilis  in  conformity  to  the  provisions  of  the  act 
mentioned.  No  reason  a]ipears  against  the  validity  and  binding  force 
of  the  compromise,  and  there  is  none. 

O 


